Friday, 16 March 2012Susan Nathan Vs. State of Kerala
(2012) 243 KLR 952
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MANJULA CHELLUR, Ag. CJ & P.R. RAMACHANDRA MENON, J.
..............................................................................
W.A.No.356 of 2012
.........................................................................
Dated this the 16th March, 2012
Head Note:-
Foreigners Act, 1946 - Sections 14(a) and (b) - Visa Violation - Contention that registration of a crime as a ground to permit continue in India - Held, anybody who wants to overstay in India, contrary to the relevant provisions of law and conditions of Visa, can stay back once he/she commits some or other offence, so that a Crime will come to be registered, enabling the person to have the desired result. Right to continue in the country on valid terms is one thing and offence committed warranting penalty to be imposed, is a different thing. A person who has violated the law, cannot be given any premium for his/her misdeeds.
J U D G M E N T
P.R. Ramachandra Menon, J
Interference declined by the learned Single Judge, dismissing the writ petition in limini, is sought to be interfered in this appeal.
2. The appellant, holder of British passport as well as Israel Passport, is a UK born Israel National, had come to India earlier, on a 'Tourist Visa' on the strength of the 'British passport' in the year 2009. Now, she has come on 'X Visa' on the strength of 'Israel Passport' on 14.10.2010 and is overstaying in the address shown in the cause title, despite the expiry of the said Visa on 16.03.2011 and is trying to continue here, somehow or the other.
3. The appellant is a writer, who proclaims to be a Social worker, Teacher, Community support worker, Counsellor and Group facilitator and that her writings are stated as being accepted and appreciated world wide. The appellant came to India on 14.10.2010 from Tel Aviv, Israel, through Mumbai Airport, reaching Kozhikode for doing voluntary service to teach as 'honourary faculty' in the Institute of Palliative Medicine, a unit of Pain and Palliative Care Society, Government Medical College, Kozhikode. It is stated that she is a Clinical Psychologist and that she had promised the authorities of the Institute of Palliative Medicine that she would provide voluntary training to the Health care Professionals; which condition was incorporated in the Visa as well.
4. However, after reaching India, the appellant did not honour her words by her deeds, joining the Institute of Palliative Medicine to do the voluntary service as undertaken. She violated the Visa conditions and allegedly associated with some Muslim religious fundamentalists and was more eager to do something else. In the meanwhile, her Visa expired on 16.03.2011, under which circumstance, she filed an application before the 5th respondent for extension of Visa. She filed another application before the Registration officer under the Foreigners Registration Act, 1946, Kozhikode district, for extension of the resident permit, so as to enable her to continue to reside in Kozhikode, in connection with her treatment for bodily ailments and some other purpose. Based on the enquiry conducted by the Special Branch of Police as to the suspected involvement of the appellant with some Muslim Religious Fundamentalist elements and some banned organisations, the second respondent issued "Quit Notice", which made the appellant to approach this Court by filing W.P.(C) 8641 of 2011.
5. After hearing the appellant/writ petitioner and the respondents, the said writ petition was disposed of, as per judgment dated 24th March, 2011, directing the Registration officer under the Foreigners Registration Act, Kozhikode (4th respondent therein), to consider and pass appropriate orders on the representation preferred before him for extension of resident permit within one month. Similarly, the 5th respondent (Union of India) was directed to consider the representation preferred before the said respondent for extension of Visa and pass final orders within two months. Implementation of the "Quit Notice" by the concerned respondent was made subject to the outcome of the orders to be passed as aforesaid.
6. Inspite of expiry of the time granted by this Court, no further action was pursued by the appellant, raising any voice/grievance in respect of the proceedings pending before the concerned respondents, particularly the Union of Government as to the request for extension of 'X-Visa' and the appellant was continuing to reside in Kozhikode, simply referring to the pendency of the matter. Admittedly, no favourable orders were obtained to the appellant on time, to justify her overstayal and it appears that she was happy with the position, leaving the issue in 'as is where is condition'.
7. Pursuant to the verdict as aforesaid, the request pending before the Foreigners' Registration Officer was later considered by the said authority and after meticulous analysis of the data collected from different corners, particularly, the Special Branch/Intelligence and also considering the sequence of events after coming to India earlier on Tourist Visa, including the nefarious activities were reported by the Special Branch to the Ministry of Home Affairs, New Delhi, leading to "Look Out Circular" issued by the said Ministry against the appellant on 21.02.2011 and such other incriminating circumstances, issued Ext. P9 order dated 13.05.2011 rejecting her representation for extending the resident permit, holding that the request was devoid of any merit.
8. The appellant approached this Court challenging Ext. P9 order, almost reiterating the grounds raised earlier and contending that there was absolutely no basis for the findings rendered by the second respondent in Ext. P9. It is pointed out that the appellant was entitled to continue to reside in Kozhikode in connection with her treatment for her spinal problem and also in connection with the ongoing steps for brining forth the 'Malayalam' version of her Book "The other side of Israel" or writing some other book. The said writ petition [W.P.(C) No.14109 of 2011] filed on 24.05.2011 came up for admission before the Court on different occasions and the Bench was not at all inclined to admit the matter, under which circumstance, it was being adjourned from time to time. Finally, it came up for consideration on 22.02.2011, when also adjournment was sought for, referring to the 12 adjournments granted earlier, the Court declined the request and the matter was considered on merits. After a thread-bare analysis of the facts and figures as reflected from the materials on record, the learned Judge observed that the finding in Ext. P9 was well supported with the reasons and that the writ petition was devoid of any merit or bonafides, which in turn was dismissed in limini, which is under challenge in this appeal.
9. We heard Mr. Manjeri S. Sundar Raj, the learned Counsel for the appellant at length and also the learned Advocate General, who appeared on behalf of the State/concerned authorities under the State.
10. In the course of arguments, the learned Counsel for the appellant referred to various Annexures (such as Annexures 1 to 18) produced in the Appeal and asserted that the interference declined by the learned Single Judge was not correct or proper; that there was no violation of Visa conditions; that the appellant was entitled to avail treatment from the hospitals in Kozhikode ; that she did not have any connection whatsoever with the alleged persons/organisations/institutions and that Ext. P9 was passed quite in a mechanical manner. However, there was no explanation with regard to the events/steps leading to the "Look Out Circular" issued by the Ministry of Home Affairs, on 21.02.2011, nor was there any challenge in respect of the said proceedings anywhere in the writ petition or in the writ appeal. The factual position that the appellant came to India on 'X Visa' showing the specific purpose as for rendering voluntary service in the Institute of Palliative Medicine, Government Medical College, Kozhikode and the fact that she did not join the said Centre for rendering such service was conceded; however adding some reasons referring to her bodily ailments and such other pre- occupations in connection with the proposed publication of the Malayalam version of her work "The other side of Israel". She has produced a copy of the agreement executed by her with the publisher as Annexure -17.
11. The learned Advocate General vehemently opposed the relief sought for and sought to sustain the judgment passed by the learned Single Judge referring to the actual facts and figures as discernible from the materials on record . Reference was also made to the specific averments in the counter affidavit filed by the concerned respondent in the writ petition. It was pointed out that, there was absolutely no vested right for the appellant to contend that she was entitled to continue in Kozhikode, notwithstanding the adverse remarks of the Special Branch of Police/Intelligence Wing. In response to the submission made by the learned Counsel for the appellant as to the course suggested by the Ministry of Home Affairs for facilitating issuance of a Medical Visa, as stated in paragraph 11 of the counter affidavit, the learned Advocate General submitted that such a course was suggested by the Ministry of Home Affairs "subject to nothing adverse" and that she could not be allowed to do any other activities during such time . The lapse on the part of the appellant is described in paragraph 12 of the counter affidavit. That apart, the very existence of the "Look Out Circular" pending against the appellant in her Israel Passport No.13531754 issued by the Secretary of the Ministry of Home Affairs , New Delhi vide reference No.25022/28/2011 FV dated 21.02.2011 , as averred in paragraph 13 of the affidavit was highlighted, pointing out that the appellant was not entitled to have any relief in such circumstance.
12. During the course of hearing, the appellant was confronted with the scope of examining the various Annexures produced by her in the Appeal, which were not forming part of the records before the learned Single Judge, when the matter was finalised as per the judgment. The appellant was also asked to explain the propriety of writing a letter by her, who was just a litigant, to a sitting Judge of the Hon'ble Supreme Court, vide Annexure 12 dated 30.06.2011 during the pendency of the writ petition and producing a copy of the said letter as a document to be scrutinised by this Court in the appeal. The learned Counsel for the appellant submitted that it was done by the appellant on her own and that it was never with any intent to influence the administration of justice, adding that no insinuation is made against anybody in the said letter . After hearing, the matter was taken up for judgment on 02.03.2012.
13. Just three days after the final hearing as aforesaid, the appellant filed I.A.No.120 of 2012 seeking to re-open the hearing of the appeal. Another interlocutory application ( I.A No. 121 of 2012) was also filed seeking to accept the 'addendum affidavit' filed by the appellant. The above applications came up for consideration before the Bench on 08.03.2012 and after hearing, both the applications were allowed. Pursuant to the said order, the appeal was re-opened and heard again at length.
14. The learned Counsel for the appellant submitted that the appellant has filed an affidavit expressing regrets and apology as to the course and events deprecated, with regard to Annexure 12. With regard to the merits, the learned Counsel also submitted that a vital fact as to the registration of Crime against the appellant could not be brought to the notice of this Court when the matter was heard on the last occasion. It was stated that the Police had already registered a crime, as Crime No.148 of 2012 of Nadakkavu Police Station, Kozhikkode against appellant in respect of the offences under sections 14(a) and (b) of the Foreigners Act, 1946. In view of the registration of the Crime as aforesaid, it was stated as more necessary for the appellant to remain in station and face the charge, to substantiate her innocence.
15. The learned Advocate General submitted that the idea and understanding of the appellant in this regard was quite wrong and misconceived and that, going by the very nature of the offence involved, it was more in respect of an admitted fact of overstay after expiry of the Visa on 16.03.2011 and in pursuing an activity contrary to the entry in the Visa.
16. Coming to the merits involved, it is an admitted fact that the appellant came to India on 'X-Visa', showing the purpose of visit as rendering voluntary service at the Institute of Palliative Medicine, Government Medical College, Kozhikode. It also remains a fact that the petitioner did not join the Institute for honouring her commitment, which condition was incorporated in the Visa, but was pursuing something else all through out. In the year 2009, the appellant had visited India on a 'Tourist Visa' using the British Passport bearing No.705100967, which was valid upto 29.09.2014; whereas this time, she chose to come to India, making use of the Israel Passport bearing No.13531724, which was valid till 21.04.2019, on 'X type Visa' bearing AN.681615 which was valid only upto 16.03.2011. As a matter of fact, 'X type Visa' is issued to foreigners of Indian Origin or spouse and children of a foreigner of Indian origin or Indian Citizen or spouse and dependent children of a foreigner coming to India on any other long term Visa such as employment visa or business visa or people who do not clearly fall into any of other categories of visa such as Volunteers etc., as per Circular No.386 dtd.30/06/2010 referene No.25022/22/2008 F-I (Part 3) of the Foreign Division of the Ministry of Home Affairs, as pointed out in Ext P9.
17. Ext. P9 order impugned in the writ petition reveals that on receipt of the Registration report (wherein the purpose of visit was shown as to render voluntary service in the Institute of of Palliative Medicine, Medical College, Kozhikode), it was got enquired into by the Special Branch Police. The enquiry brought it to the light, that the appellant was not working in the Institute, but was overstaying here for publication of the Malayalam version of her book "The other side of the Israel", which is stated as a full fledged criticism against the activists of Israel. It is stated that the report also throws some light in respect of the suspected activities of the appellant as a result of which, the request for registration was rejected, leading to the 'Quit Notice' dated 08.01.2011, which was challenged in W.P. (C)8641 of 2011. It has been clearly observed in Ext. P9 that the detailed enquiry revealed that a 'Look Out Circular' was pending against the appellant in Israel Passport vide Look Out Circular Reference No. 2022/28/2011 FV dated 21.02.2011 of Ministry of Home Affairs, New Delhi. The purpose of entry and stay is stated as flouted, in so far as the appellant did not turn up for the voluntary service in the Institute of Palliative Medicine, Government Medical College, Kozhikode as undertaken and entered in the Visa and that a foreigner, who has come to India on the strength of a particular Visa, should perform the activities as stated in the Visa, failing which, it will be treated as violation of Visa conditions. In the affidavit dated 25.04.2011, the appellant has conceded that the purpose of further stay in India is for treatment and to write books etc. Reference is also made in Ext.P9 as to the report of the Special Branch Police, indicating that the appellant had indulged in other suspicious activities as well, which made the second respondent to reject the representation preferred by the appellant as devoid of any merit.
18. The description of the factual position as given in paragraphs 3 to 6 of the counter affidavit filed on behalf of the second respondent are also relevant , which hence are extracted below:
"3. On arrival, petitioner resided at 2A Flat, Sky line oceanic, Silk Street, Kozhikode. She never turned for performing voluntary service at Palliative medicine. She violated the visa condition and associated with some Muslim religious fundamentalist elements. Subsequently there were some issues with the residence of the flat. They reported suspicious activities on her part before Police. On the basis of the complaint of Skyline Oceanic Apartment Owners' Association, police conducted enquiry and found her involvement in certain suspicious activities. On enquiry, it is revealed that one Mr. Sujith Nair, Aged 32 years, S/o C.M. Narayana Nair, Paravathi House, No. 266/A Padinjattam Kozhuvl, Post Nileshwar, Kerala 671 314 is the owner of this house. He is said to be at Gulf. He rented the house to one Dr. Auswaf Ahsan K.P., aged 45 years, Doctor, S/o Dr. Aboobacker, 301, Sea Scape Apartment, Kallayi Road, Chalapuram, Kozhikode on an agreement. In the further enquiry conducted, it is revealed that this person is Dr. Ouseph Afsal, having residential address S/o Aboobacker, Afsal House, Olipram, Vydiriangadi, Ramanattukara, Feroke PS limit, who was a previous SIMI activist (Vice President of SIMI) at the time of his studies. As per records, he was at Manipal conducting a Dental Clinic and residing with family at Manipal. It is learned that he is now residing somewhere at Kollam. But in the agreement executed his name is mentioned as Dr. Auswaf Ahsan K.P. S/o Dr. Aboobacker.
4. It is revealed that the intention of the foreigner to reside in India is for the publication of the Malayalam version of one book written by her "the other side of Israel, my journey across the Jewish-Arab Divide" (in Malayalam Israel - Atma Vanchanayude Puravertham"). This is a full pledged criticism against the activities of Israel. This Malayalam version is published by other books, 1st Floor, New Way Buildings, Railway Link road, Calicut 673 002, associated with Islamic literature. During the investigation of Hand chopping case of Shri. Joseph, Prof of Newman College, raids were conducted at these book stall by Police. It is suspected that Muslim fundamental organization like SIMI, NDF etc. are aiding this book stall. It is also learnt that the foreigner wrote some articles in some of the periodicals/dailies like Thejus etc. Due to the local objection from the residents of Skyline, she vacated the flat and resided at other two places and now residing in the given address.
5. On perusal of the previous records, it is revealed that on 26.11.2009 she arrived Kozhikode by Mumbai Airport on the strength of Tourist Visa No. AK830039 dated 28.10.2009 valid upto 28.04.2010 and Passport No. 13531724 of State of Israel. She overstayed India upto 17.05.2010 stating disruption experienced in her travel route due to volcanic ash. At this time, she was also issued with quit notice by Sri. P. Vijayan IPS, Commissioner of Police and Foreign Registration Officer, Kozhikode City insisting that she should not remain in India after 17.05.2010. At that time, there were reports that on the strength of Tourist Visa, she associated with Muslim fundamental organizations. As such Intelligence Bureau reported the matter to MHA for issuing LOC against her. On the strength of the request made by Intelligence Bureau, vide reference No. 25022/28/2011 FB dated 21.02.2011 the Under Secretary, Ministry of Home Affairs, New Delhi issued Look out circular against her.
6. A Tourist Visa cannot be extended in the normal case. Hence she returned to Israel and re-arrived India on the strength of an X Visa which can be extended in India. Under the pretext of doing voluntary works as Palliative Medicine, Medical College, Kozhikode. According to her she arrived India for working with Dr. Suresh Kumar, Head of Palliative Care Unit. The visa was provided to her for training junior doctors and nurses. She is a clinical physiologist by training. But she never turned for the work and violated the visa conditions. The X visa issued her was on 16.09.2010 and the Look Out Circular was issued against her only on 21.02.2011. That is, the look out, circular was published while she is in India on the strength of the X Visa.
19. It is asserted in paragraph 10 of the counter affidavit that, pursuant to the verdict passed by the Court in the earlier round of litigation, the petitioner was given notice dated 22.04.2011 for personal hearing on 25.04.2011, pursuant to which she appeared with her Counsel on that day and submitted a representation. In the meanwhile, she admitted that she had associated with the publishers (Other books) and certain periodicals and that she never turned up for service in the Institute of Palliative Medicine, Government Medical College, Kozhikode. With regard to the course suggested by the Ministry of Home Affairs as to the changing of Visa mentioned in paragraph 11 of the counter affidavit, it is stated in paragraph 12, in the following terms:
12. As such, she was instructed to furnish the medical treatment papers before the foreigner Registration Officer with proper application and remitted the required fee. In spite of the repeated requests, till this date she has not turned up to submit her application she even scolded the Special Branch official who appeared before her with the request. Petitioner acted as if she is not bothered to obey the Indian Laws.
20. It has been asserted in paragraph 13, that a 'Look Out Circular' is pending against the appellant in her Israel Passport, as ordered by the Ministry of Home Affairs, New Delhi on 21.02.2011 , i.e., during the period when she was available in India. The said 'Look Out Circular' is stated as issued on the request of the Intelligence Bureau of India, Union Govt. of India on finding her suspicious activities. It has been further pointed out that the Intelligence Bureau recommended for 'Look Out Circular' while the appellant in India, on the strength of a 'Tourist Visa', without the knowledge of the local police, on detecting her suspicious activities while residing here on the strength of 'X Visa'.
21. It is worthwhile to note, that inspite of the admitted factual position that the appellant did not turn up for the service/work in the Institute of Palliative Medicine, Government Medical College, Kozhikode, in the representation filed by her before the Ministry of Home Affairs, Govt. of India (which was directed to be disposed of, as per the judgment dated 24.03.2011 in W.P.(C) No.8641 2011) seeking for extension of Visa, it has been stated in paragraph '5' as follows:
"I intend remaining in India and in Kerala for a while and submitted my papers to concerned authorities, which are under due process by the State machinery. I am desirous of making India/Kerala my second home. I have accepted the offer of the Institute of Palliative Medicine, Government Medical College, Calicut-673 008 to be on the Honorary Faculty of the PPC at Calicut for training health care professionals. True copy of the letter from Dr. Suresh Kumar in this regard is Annexure 2. My experience and skills in counselling and prowess in supportive care services gained from PLWHA, the Institute of Palliative Medicine consider them as of immense benefit. I 'work for the Institute of Palliative Medicine, Calicut presently on honorary basis and it is no money making employment'.
22. The appellant asserted in the last sentence of paragraph '5' that she was working for the Institute of Palliative Medicine, Calicut as on date, on honorary basis and that it was no money making employment, which cannot but be a wilful misrepresentation in so far as the appellant has not at all worked in the institute, as above. In fact she has no such case anywhere in the writ petition or in the writ appeal and has rather admitted that she has never worked in the said Institute after her arrival in India on 14.10.2010.
23. Coming to the additional ground raised in I.A. 120 of 2011 with reference to the registration of Crime No.148 of 2012 and heard in detail after re-opening the matter vide order dated 08.03.2012, the case of the appellant is that, since a crime has been registered in respect of offences under Sections 14(a) and (b) of the Foreigners Act, 1946, the appellant has necessarily to stay back to face the charge and prove her innocence. The above contention does not hold any water at all, for more than one reason. The offence contemplated under Section 14(a) is in respect of overstay of the term of Visa, which virtually stands admitted by the petitioner, in so far as the Visa was having validity only till 16.03.2011, while the appellant is still in India. Similarly, Section 14(b) is in respect of violation of condition of the Visa issued to the person, for entry in India or any part thereunder. The appellant has admitted that the condition in her 'X Visa' facilitating such entry, was for providing voluntary Service in the Institute of Palliative Medicine, Medical College, Kozhikode and that the same is not satisfied by her, as she has not joined the said Institute for such service and that she is pursuing such other activities in connection with publication of the Malayalam version of her book "The other side of Israel". This Court does not propose to go into the merits of the charges levelled against the appellant in the Writ Appeal for the reason that, it does not form the subject matter of this appeal.
24. To quote the words of the appellant in paragraph 12 of the affidavit filed in support of I.A. 121 OF 2012 , it reads as follows:
"However I am grateful that I am given an opportunity now by the law of this great country to face a criminal charge and to prove my innocence."
If the contention of the appellant, that registration of a crime against her as a ground to permit her to continue here, is accepted as a valid reason for intercepting the "Quit Notice" and Ext.P9, it can be easily said that, anybody who wants to overstay in India, contrary to the relevant provisions of law and conditions of Visa, can stay back once he/she commits some or other offence, so that a Crime will come to be registered, enabling the person to have the desired result. Right to continue in the country on valid terms is one thing and offence committed warranting penalty to be imposed, is a different thing. A person who has violated the law, cannot be given any premium for his/her misdeeds. On this score also, the contention does not have any merit to be considered.
25. Considering the very nature of the case, there cannot be any question of violation of fundamental rights guaranteed under Part III of the Constitution of India, in so far as the appellant is concerned. With regard to the other rights, if any, it has to be analysed and appreciated, ascertaining whether it is in tune with the specified parameters. The instruction given by the Ministry of Home Affairs for causing changing of Visa as mentioned in paragraph 11 of the counter affidavit is subject to "nothing adverse"; whereas quite a lot of adverse incriminating circumstances have been pointed out against the appellant, including existence of the "Look Out Circular" dated 21.02.2011 issued by the Ministry of Home Affairs in her Israel Passport bearing No. 13531754, which aspect has not been denied or challenged by the appellant. This is more so, when the issue is with regard to the safety and security of the country, which aspect has to be given paramount importance. This Court does not find any reason to disbelieve the data collected by the Special Branch/Intelligence and the action taken. This being the position, this Court does not consider it as a fit case for interference, either on facts or in law. The challenge raised against Ext.P9 order passed by the second respondent fails. Interference declined by the learned Single Judge is perfectly within four wall of law and is not assailable under any circumstance. The Writ Appeal is dismissed accordingly.
Print Page
(2012) 243 KLR 952
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MANJULA CHELLUR, Ag. CJ & P.R. RAMACHANDRA MENON, J.
..............................................................................
W.A.No.356 of 2012
.........................................................................
Dated this the 16th March, 2012
Head Note:-
Foreigners Act, 1946 - Sections 14(a) and (b) - Visa Violation - Contention that registration of a crime as a ground to permit continue in India - Held, anybody who wants to overstay in India, contrary to the relevant provisions of law and conditions of Visa, can stay back once he/she commits some or other offence, so that a Crime will come to be registered, enabling the person to have the desired result. Right to continue in the country on valid terms is one thing and offence committed warranting penalty to be imposed, is a different thing. A person who has violated the law, cannot be given any premium for his/her misdeeds.
J U D G M E N T
P.R. Ramachandra Menon, J
Interference declined by the learned Single Judge, dismissing the writ petition in limini, is sought to be interfered in this appeal.
2. The appellant, holder of British passport as well as Israel Passport, is a UK born Israel National, had come to India earlier, on a 'Tourist Visa' on the strength of the 'British passport' in the year 2009. Now, she has come on 'X Visa' on the strength of 'Israel Passport' on 14.10.2010 and is overstaying in the address shown in the cause title, despite the expiry of the said Visa on 16.03.2011 and is trying to continue here, somehow or the other.
3. The appellant is a writer, who proclaims to be a Social worker, Teacher, Community support worker, Counsellor and Group facilitator and that her writings are stated as being accepted and appreciated world wide. The appellant came to India on 14.10.2010 from Tel Aviv, Israel, through Mumbai Airport, reaching Kozhikode for doing voluntary service to teach as 'honourary faculty' in the Institute of Palliative Medicine, a unit of Pain and Palliative Care Society, Government Medical College, Kozhikode. It is stated that she is a Clinical Psychologist and that she had promised the authorities of the Institute of Palliative Medicine that she would provide voluntary training to the Health care Professionals; which condition was incorporated in the Visa as well.
4. However, after reaching India, the appellant did not honour her words by her deeds, joining the Institute of Palliative Medicine to do the voluntary service as undertaken. She violated the Visa conditions and allegedly associated with some Muslim religious fundamentalists and was more eager to do something else. In the meanwhile, her Visa expired on 16.03.2011, under which circumstance, she filed an application before the 5th respondent for extension of Visa. She filed another application before the Registration officer under the Foreigners Registration Act, 1946, Kozhikode district, for extension of the resident permit, so as to enable her to continue to reside in Kozhikode, in connection with her treatment for bodily ailments and some other purpose. Based on the enquiry conducted by the Special Branch of Police as to the suspected involvement of the appellant with some Muslim Religious Fundamentalist elements and some banned organisations, the second respondent issued "Quit Notice", which made the appellant to approach this Court by filing W.P.(C) 8641 of 2011.
5. After hearing the appellant/writ petitioner and the respondents, the said writ petition was disposed of, as per judgment dated 24th March, 2011, directing the Registration officer under the Foreigners Registration Act, Kozhikode (4th respondent therein), to consider and pass appropriate orders on the representation preferred before him for extension of resident permit within one month. Similarly, the 5th respondent (Union of India) was directed to consider the representation preferred before the said respondent for extension of Visa and pass final orders within two months. Implementation of the "Quit Notice" by the concerned respondent was made subject to the outcome of the orders to be passed as aforesaid.
6. Inspite of expiry of the time granted by this Court, no further action was pursued by the appellant, raising any voice/grievance in respect of the proceedings pending before the concerned respondents, particularly the Union of Government as to the request for extension of 'X-Visa' and the appellant was continuing to reside in Kozhikode, simply referring to the pendency of the matter. Admittedly, no favourable orders were obtained to the appellant on time, to justify her overstayal and it appears that she was happy with the position, leaving the issue in 'as is where is condition'.
7. Pursuant to the verdict as aforesaid, the request pending before the Foreigners' Registration Officer was later considered by the said authority and after meticulous analysis of the data collected from different corners, particularly, the Special Branch/Intelligence and also considering the sequence of events after coming to India earlier on Tourist Visa, including the nefarious activities were reported by the Special Branch to the Ministry of Home Affairs, New Delhi, leading to "Look Out Circular" issued by the said Ministry against the appellant on 21.02.2011 and such other incriminating circumstances, issued Ext. P9 order dated 13.05.2011 rejecting her representation for extending the resident permit, holding that the request was devoid of any merit.
8. The appellant approached this Court challenging Ext. P9 order, almost reiterating the grounds raised earlier and contending that there was absolutely no basis for the findings rendered by the second respondent in Ext. P9. It is pointed out that the appellant was entitled to continue to reside in Kozhikode in connection with her treatment for her spinal problem and also in connection with the ongoing steps for brining forth the 'Malayalam' version of her Book "The other side of Israel" or writing some other book. The said writ petition [W.P.(C) No.14109 of 2011] filed on 24.05.2011 came up for admission before the Court on different occasions and the Bench was not at all inclined to admit the matter, under which circumstance, it was being adjourned from time to time. Finally, it came up for consideration on 22.02.2011, when also adjournment was sought for, referring to the 12 adjournments granted earlier, the Court declined the request and the matter was considered on merits. After a thread-bare analysis of the facts and figures as reflected from the materials on record, the learned Judge observed that the finding in Ext. P9 was well supported with the reasons and that the writ petition was devoid of any merit or bonafides, which in turn was dismissed in limini, which is under challenge in this appeal.
9. We heard Mr. Manjeri S. Sundar Raj, the learned Counsel for the appellant at length and also the learned Advocate General, who appeared on behalf of the State/concerned authorities under the State.
10. In the course of arguments, the learned Counsel for the appellant referred to various Annexures (such as Annexures 1 to 18) produced in the Appeal and asserted that the interference declined by the learned Single Judge was not correct or proper; that there was no violation of Visa conditions; that the appellant was entitled to avail treatment from the hospitals in Kozhikode ; that she did not have any connection whatsoever with the alleged persons/organisations/institutions and that Ext. P9 was passed quite in a mechanical manner. However, there was no explanation with regard to the events/steps leading to the "Look Out Circular" issued by the Ministry of Home Affairs, on 21.02.2011, nor was there any challenge in respect of the said proceedings anywhere in the writ petition or in the writ appeal. The factual position that the appellant came to India on 'X Visa' showing the specific purpose as for rendering voluntary service in the Institute of Palliative Medicine, Government Medical College, Kozhikode and the fact that she did not join the said Centre for rendering such service was conceded; however adding some reasons referring to her bodily ailments and such other pre- occupations in connection with the proposed publication of the Malayalam version of her work "The other side of Israel". She has produced a copy of the agreement executed by her with the publisher as Annexure -17.
11. The learned Advocate General vehemently opposed the relief sought for and sought to sustain the judgment passed by the learned Single Judge referring to the actual facts and figures as discernible from the materials on record . Reference was also made to the specific averments in the counter affidavit filed by the concerned respondent in the writ petition. It was pointed out that, there was absolutely no vested right for the appellant to contend that she was entitled to continue in Kozhikode, notwithstanding the adverse remarks of the Special Branch of Police/Intelligence Wing. In response to the submission made by the learned Counsel for the appellant as to the course suggested by the Ministry of Home Affairs for facilitating issuance of a Medical Visa, as stated in paragraph 11 of the counter affidavit, the learned Advocate General submitted that such a course was suggested by the Ministry of Home Affairs "subject to nothing adverse" and that she could not be allowed to do any other activities during such time . The lapse on the part of the appellant is described in paragraph 12 of the counter affidavit. That apart, the very existence of the "Look Out Circular" pending against the appellant in her Israel Passport No.13531754 issued by the Secretary of the Ministry of Home Affairs , New Delhi vide reference No.25022/28/2011 FV dated 21.02.2011 , as averred in paragraph 13 of the affidavit was highlighted, pointing out that the appellant was not entitled to have any relief in such circumstance.
12. During the course of hearing, the appellant was confronted with the scope of examining the various Annexures produced by her in the Appeal, which were not forming part of the records before the learned Single Judge, when the matter was finalised as per the judgment. The appellant was also asked to explain the propriety of writing a letter by her, who was just a litigant, to a sitting Judge of the Hon'ble Supreme Court, vide Annexure 12 dated 30.06.2011 during the pendency of the writ petition and producing a copy of the said letter as a document to be scrutinised by this Court in the appeal. The learned Counsel for the appellant submitted that it was done by the appellant on her own and that it was never with any intent to influence the administration of justice, adding that no insinuation is made against anybody in the said letter . After hearing, the matter was taken up for judgment on 02.03.2012.
13. Just three days after the final hearing as aforesaid, the appellant filed I.A.No.120 of 2012 seeking to re-open the hearing of the appeal. Another interlocutory application ( I.A No. 121 of 2012) was also filed seeking to accept the 'addendum affidavit' filed by the appellant. The above applications came up for consideration before the Bench on 08.03.2012 and after hearing, both the applications were allowed. Pursuant to the said order, the appeal was re-opened and heard again at length.
14. The learned Counsel for the appellant submitted that the appellant has filed an affidavit expressing regrets and apology as to the course and events deprecated, with regard to Annexure 12. With regard to the merits, the learned Counsel also submitted that a vital fact as to the registration of Crime against the appellant could not be brought to the notice of this Court when the matter was heard on the last occasion. It was stated that the Police had already registered a crime, as Crime No.148 of 2012 of Nadakkavu Police Station, Kozhikkode against appellant in respect of the offences under sections 14(a) and (b) of the Foreigners Act, 1946. In view of the registration of the Crime as aforesaid, it was stated as more necessary for the appellant to remain in station and face the charge, to substantiate her innocence.
15. The learned Advocate General submitted that the idea and understanding of the appellant in this regard was quite wrong and misconceived and that, going by the very nature of the offence involved, it was more in respect of an admitted fact of overstay after expiry of the Visa on 16.03.2011 and in pursuing an activity contrary to the entry in the Visa.
16. Coming to the merits involved, it is an admitted fact that the appellant came to India on 'X-Visa', showing the purpose of visit as rendering voluntary service at the Institute of Palliative Medicine, Government Medical College, Kozhikode. It also remains a fact that the petitioner did not join the Institute for honouring her commitment, which condition was incorporated in the Visa, but was pursuing something else all through out. In the year 2009, the appellant had visited India on a 'Tourist Visa' using the British Passport bearing No.705100967, which was valid upto 29.09.2014; whereas this time, she chose to come to India, making use of the Israel Passport bearing No.13531724, which was valid till 21.04.2019, on 'X type Visa' bearing AN.681615 which was valid only upto 16.03.2011. As a matter of fact, 'X type Visa' is issued to foreigners of Indian Origin or spouse and children of a foreigner of Indian origin or Indian Citizen or spouse and dependent children of a foreigner coming to India on any other long term Visa such as employment visa or business visa or people who do not clearly fall into any of other categories of visa such as Volunteers etc., as per Circular No.386 dtd.30/06/2010 referene No.25022/22/2008 F-I (Part 3) of the Foreign Division of the Ministry of Home Affairs, as pointed out in Ext P9.
17. Ext. P9 order impugned in the writ petition reveals that on receipt of the Registration report (wherein the purpose of visit was shown as to render voluntary service in the Institute of of Palliative Medicine, Medical College, Kozhikode), it was got enquired into by the Special Branch Police. The enquiry brought it to the light, that the appellant was not working in the Institute, but was overstaying here for publication of the Malayalam version of her book "The other side of the Israel", which is stated as a full fledged criticism against the activists of Israel. It is stated that the report also throws some light in respect of the suspected activities of the appellant as a result of which, the request for registration was rejected, leading to the 'Quit Notice' dated 08.01.2011, which was challenged in W.P. (C)8641 of 2011. It has been clearly observed in Ext. P9 that the detailed enquiry revealed that a 'Look Out Circular' was pending against the appellant in Israel Passport vide Look Out Circular Reference No. 2022/28/2011 FV dated 21.02.2011 of Ministry of Home Affairs, New Delhi. The purpose of entry and stay is stated as flouted, in so far as the appellant did not turn up for the voluntary service in the Institute of Palliative Medicine, Government Medical College, Kozhikode as undertaken and entered in the Visa and that a foreigner, who has come to India on the strength of a particular Visa, should perform the activities as stated in the Visa, failing which, it will be treated as violation of Visa conditions. In the affidavit dated 25.04.2011, the appellant has conceded that the purpose of further stay in India is for treatment and to write books etc. Reference is also made in Ext.P9 as to the report of the Special Branch Police, indicating that the appellant had indulged in other suspicious activities as well, which made the second respondent to reject the representation preferred by the appellant as devoid of any merit.
18. The description of the factual position as given in paragraphs 3 to 6 of the counter affidavit filed on behalf of the second respondent are also relevant , which hence are extracted below:
"3. On arrival, petitioner resided at 2A Flat, Sky line oceanic, Silk Street, Kozhikode. She never turned for performing voluntary service at Palliative medicine. She violated the visa condition and associated with some Muslim religious fundamentalist elements. Subsequently there were some issues with the residence of the flat. They reported suspicious activities on her part before Police. On the basis of the complaint of Skyline Oceanic Apartment Owners' Association, police conducted enquiry and found her involvement in certain suspicious activities. On enquiry, it is revealed that one Mr. Sujith Nair, Aged 32 years, S/o C.M. Narayana Nair, Paravathi House, No. 266/A Padinjattam Kozhuvl, Post Nileshwar, Kerala 671 314 is the owner of this house. He is said to be at Gulf. He rented the house to one Dr. Auswaf Ahsan K.P., aged 45 years, Doctor, S/o Dr. Aboobacker, 301, Sea Scape Apartment, Kallayi Road, Chalapuram, Kozhikode on an agreement. In the further enquiry conducted, it is revealed that this person is Dr. Ouseph Afsal, having residential address S/o Aboobacker, Afsal House, Olipram, Vydiriangadi, Ramanattukara, Feroke PS limit, who was a previous SIMI activist (Vice President of SIMI) at the time of his studies. As per records, he was at Manipal conducting a Dental Clinic and residing with family at Manipal. It is learned that he is now residing somewhere at Kollam. But in the agreement executed his name is mentioned as Dr. Auswaf Ahsan K.P. S/o Dr. Aboobacker.
4. It is revealed that the intention of the foreigner to reside in India is for the publication of the Malayalam version of one book written by her "the other side of Israel, my journey across the Jewish-Arab Divide" (in Malayalam Israel - Atma Vanchanayude Puravertham"). This is a full pledged criticism against the activities of Israel. This Malayalam version is published by other books, 1st Floor, New Way Buildings, Railway Link road, Calicut 673 002, associated with Islamic literature. During the investigation of Hand chopping case of Shri. Joseph, Prof of Newman College, raids were conducted at these book stall by Police. It is suspected that Muslim fundamental organization like SIMI, NDF etc. are aiding this book stall. It is also learnt that the foreigner wrote some articles in some of the periodicals/dailies like Thejus etc. Due to the local objection from the residents of Skyline, she vacated the flat and resided at other two places and now residing in the given address.
5. On perusal of the previous records, it is revealed that on 26.11.2009 she arrived Kozhikode by Mumbai Airport on the strength of Tourist Visa No. AK830039 dated 28.10.2009 valid upto 28.04.2010 and Passport No. 13531724 of State of Israel. She overstayed India upto 17.05.2010 stating disruption experienced in her travel route due to volcanic ash. At this time, she was also issued with quit notice by Sri. P. Vijayan IPS, Commissioner of Police and Foreign Registration Officer, Kozhikode City insisting that she should not remain in India after 17.05.2010. At that time, there were reports that on the strength of Tourist Visa, she associated with Muslim fundamental organizations. As such Intelligence Bureau reported the matter to MHA for issuing LOC against her. On the strength of the request made by Intelligence Bureau, vide reference No. 25022/28/2011 FB dated 21.02.2011 the Under Secretary, Ministry of Home Affairs, New Delhi issued Look out circular against her.
6. A Tourist Visa cannot be extended in the normal case. Hence she returned to Israel and re-arrived India on the strength of an X Visa which can be extended in India. Under the pretext of doing voluntary works as Palliative Medicine, Medical College, Kozhikode. According to her she arrived India for working with Dr. Suresh Kumar, Head of Palliative Care Unit. The visa was provided to her for training junior doctors and nurses. She is a clinical physiologist by training. But she never turned for the work and violated the visa conditions. The X visa issued her was on 16.09.2010 and the Look Out Circular was issued against her only on 21.02.2011. That is, the look out, circular was published while she is in India on the strength of the X Visa.
19. It is asserted in paragraph 10 of the counter affidavit that, pursuant to the verdict passed by the Court in the earlier round of litigation, the petitioner was given notice dated 22.04.2011 for personal hearing on 25.04.2011, pursuant to which she appeared with her Counsel on that day and submitted a representation. In the meanwhile, she admitted that she had associated with the publishers (Other books) and certain periodicals and that she never turned up for service in the Institute of Palliative Medicine, Government Medical College, Kozhikode. With regard to the course suggested by the Ministry of Home Affairs as to the changing of Visa mentioned in paragraph 11 of the counter affidavit, it is stated in paragraph 12, in the following terms:
12. As such, she was instructed to furnish the medical treatment papers before the foreigner Registration Officer with proper application and remitted the required fee. In spite of the repeated requests, till this date she has not turned up to submit her application she even scolded the Special Branch official who appeared before her with the request. Petitioner acted as if she is not bothered to obey the Indian Laws.
20. It has been asserted in paragraph 13, that a 'Look Out Circular' is pending against the appellant in her Israel Passport, as ordered by the Ministry of Home Affairs, New Delhi on 21.02.2011 , i.e., during the period when she was available in India. The said 'Look Out Circular' is stated as issued on the request of the Intelligence Bureau of India, Union Govt. of India on finding her suspicious activities. It has been further pointed out that the Intelligence Bureau recommended for 'Look Out Circular' while the appellant in India, on the strength of a 'Tourist Visa', without the knowledge of the local police, on detecting her suspicious activities while residing here on the strength of 'X Visa'.
21. It is worthwhile to note, that inspite of the admitted factual position that the appellant did not turn up for the service/work in the Institute of Palliative Medicine, Government Medical College, Kozhikode, in the representation filed by her before the Ministry of Home Affairs, Govt. of India (which was directed to be disposed of, as per the judgment dated 24.03.2011 in W.P.(C) No.8641 2011) seeking for extension of Visa, it has been stated in paragraph '5' as follows:
"I intend remaining in India and in Kerala for a while and submitted my papers to concerned authorities, which are under due process by the State machinery. I am desirous of making India/Kerala my second home. I have accepted the offer of the Institute of Palliative Medicine, Government Medical College, Calicut-673 008 to be on the Honorary Faculty of the PPC at Calicut for training health care professionals. True copy of the letter from Dr. Suresh Kumar in this regard is Annexure 2. My experience and skills in counselling and prowess in supportive care services gained from PLWHA, the Institute of Palliative Medicine consider them as of immense benefit. I 'work for the Institute of Palliative Medicine, Calicut presently on honorary basis and it is no money making employment'.
22. The appellant asserted in the last sentence of paragraph '5' that she was working for the Institute of Palliative Medicine, Calicut as on date, on honorary basis and that it was no money making employment, which cannot but be a wilful misrepresentation in so far as the appellant has not at all worked in the institute, as above. In fact she has no such case anywhere in the writ petition or in the writ appeal and has rather admitted that she has never worked in the said Institute after her arrival in India on 14.10.2010.
23. Coming to the additional ground raised in I.A. 120 of 2011 with reference to the registration of Crime No.148 of 2012 and heard in detail after re-opening the matter vide order dated 08.03.2012, the case of the appellant is that, since a crime has been registered in respect of offences under Sections 14(a) and (b) of the Foreigners Act, 1946, the appellant has necessarily to stay back to face the charge and prove her innocence. The above contention does not hold any water at all, for more than one reason. The offence contemplated under Section 14(a) is in respect of overstay of the term of Visa, which virtually stands admitted by the petitioner, in so far as the Visa was having validity only till 16.03.2011, while the appellant is still in India. Similarly, Section 14(b) is in respect of violation of condition of the Visa issued to the person, for entry in India or any part thereunder. The appellant has admitted that the condition in her 'X Visa' facilitating such entry, was for providing voluntary Service in the Institute of Palliative Medicine, Medical College, Kozhikode and that the same is not satisfied by her, as she has not joined the said Institute for such service and that she is pursuing such other activities in connection with publication of the Malayalam version of her book "The other side of Israel". This Court does not propose to go into the merits of the charges levelled against the appellant in the Writ Appeal for the reason that, it does not form the subject matter of this appeal.
24. To quote the words of the appellant in paragraph 12 of the affidavit filed in support of I.A. 121 OF 2012 , it reads as follows:
"However I am grateful that I am given an opportunity now by the law of this great country to face a criminal charge and to prove my innocence."
If the contention of the appellant, that registration of a crime against her as a ground to permit her to continue here, is accepted as a valid reason for intercepting the "Quit Notice" and Ext.P9, it can be easily said that, anybody who wants to overstay in India, contrary to the relevant provisions of law and conditions of Visa, can stay back once he/she commits some or other offence, so that a Crime will come to be registered, enabling the person to have the desired result. Right to continue in the country on valid terms is one thing and offence committed warranting penalty to be imposed, is a different thing. A person who has violated the law, cannot be given any premium for his/her misdeeds. On this score also, the contention does not have any merit to be considered.
25. Considering the very nature of the case, there cannot be any question of violation of fundamental rights guaranteed under Part III of the Constitution of India, in so far as the appellant is concerned. With regard to the other rights, if any, it has to be analysed and appreciated, ascertaining whether it is in tune with the specified parameters. The instruction given by the Ministry of Home Affairs for causing changing of Visa as mentioned in paragraph 11 of the counter affidavit is subject to "nothing adverse"; whereas quite a lot of adverse incriminating circumstances have been pointed out against the appellant, including existence of the "Look Out Circular" dated 21.02.2011 issued by the Ministry of Home Affairs in her Israel Passport bearing No. 13531754, which aspect has not been denied or challenged by the appellant. This is more so, when the issue is with regard to the safety and security of the country, which aspect has to be given paramount importance. This Court does not find any reason to disbelieve the data collected by the Special Branch/Intelligence and the action taken. This being the position, this Court does not consider it as a fit case for interference, either on facts or in law. The challenge raised against Ext.P9 order passed by the second respondent fails. Interference declined by the learned Single Judge is perfectly within four wall of law and is not assailable under any circumstance. The Writ Appeal is dismissed accordingly.
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