Calcutta High Court (Appellete Side)
Josses Cedric Julien Roger ... vs The State Of West Bengal & Anr on 20 January, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRR 4540 of 2022
Josses Cedric Julien Roger Georges
-Vs-
The State of West Bengal & Anr.
For the Petitioner: Mr. Sandipan Ganguly, Sr. Adv.,
Mr. Somopriyo Chowdhury, Adv.,
Mr. Kausik De, Adv.,
Ms. Mohini Majumder, Adv.,
Mr. Raghav Munshi, Adv.,
Mr. Saptarshi Mal. Adv.,
For the State: Mr. Rudradipta Nandy, Adv.,
Ms. Somali Das, Adv.
Heard on: 20 January, 2023.
Judgment on: 20 January, 2023.
BIBEK CHAUDHURI, J. : -
1. Petitioner's application under Section 239 of the Code of Criminal
Procedure was rejected by the learned Chief Judicial Magistrate at Alipore
in CGR Case No.3238 of 2021 on 9th November, 2022. The petitioner has
assailed the said order in the instant revision.
2. Facts
necessary for the disposal of the instant revision are as
follows:-
3. The petitioner is a French national. He came to India with E-Tourist
VISA on 26th April, 2019 to meet his fiancé Anita Oraon and her family
members for settlement of their marriage. Tourist VISA was valid for 12
months. In the mean time, Covid-19 pandemic engulf the whole world.
Therefore, he could not go back to his own country. In the mean time, his
VISA was about to expire on 31st October, 2021. The petitioner applied for
extension of his VISA before expiry of VISA period but his prayer was not
acted upon by the concern office. In the mean time, on 22nd November,
2021 he was arrested by police.
4. On the basis of a written complaint submitted by the opposite party
No.2 in his official capacity as Sub-Inspector, Illegal Migrant Cell, Security
Control Organization a criminal case under Section 14(b) of the
Foreigners Act was initiated against the accused. It was alleged that the
petitioner along with his fiancé Anita Oraon are directors of a company,
named, Ohlala-Spa & Wellness Beauty Lounge Private Limited which was
incorporated on 15th May, 2019. The petitioner allegedly came to India for
business purpose to promote the above named company. He ought to
have travelled this country with business VISA but he conducted business
as the director of the above named company coming to India in tourist
VISA.
5. The said complaint gave rise to Rabindra Sarobar Police Station FIR
Being No.183 of 2021 under Section 14(b) of the Foreigners Amendment
Act, 2004. Police submitted charge-sheet against the accused on 12th
December, 2021. After filing of the charge-sheet the petitioner was
released on bail on 23rd December, 2021 and thereafter filed an
application under Section 239 of the Code of Criminal Procedure.
However, the learned Chief Judicial Magistrate at Alipore rejected the said
application on 9th November, 2022.
6. It is not disputed by Mr. Sandipan Ganguly, learned Senior Counsel
on behalf of the petitioner that the petitioner is one of the directors of
Ohlala-Spa & Wellness Beauty Lounge Private Limited. There is no
statutory bar for the petitioner being a foreign national to act as a director
of a company incorporated in India. In support of his contention, he refers
to Section 149 of the Companies Act, 2013. Sub-Section (3) of Section 149
states:-
"Every company shall have at least one director who stays in
India for a total period of not less than one hundred and
eighty-two days during the financial year:
Provided that in case of a newly incorporated company
the requirement under this sub-section shall apply
proportionately at the end of the financial year in which it is
incorporated."
Thus, it is stipulated that at least one of the director of a
company incorporated in India must be a director who is not a non
resident India.
7. It is submitted by Mr. Ganguly that the petitioner came to India
with E-tourist VISA in order to meet his fiancé to settle his marriage with
her. There was no other purpose for his coming to this country in the year
2019. Only because he is a director of a private limited company
incorporated in India the petitioner was implicated in a case under
Section 14(b) of the Foreigners Amendment Act. Learned Senior Counsel
for the petitioner also submits that during investigation police failed to
collect any evidence against the petitioner to show even prima facie that
he was engaged in some business work of the said company or he was
engaged in the management and day to day affairs of the company. Only
because a person is a director of a company, there cannot be any rule
that he cannot travel this country in tourist VISA.
8. Mr. Nandy, learned P.P-in-Charge, on the other hand has handed
over a document containing "general policy guidelines relating to Indian
VISA" appendix-1 of the said guideline contains categories and sub-
categories of VISA under E-Tourist VISA, a foreign national may
undertake recreation, sight seeing, casual visit to meet friends or relatives
and attending a short term yoga programme. There are, on the other
hand, different categories of business VISA depending upon the small,
medium, large business concerns for the visitors who intend to come to
India for business purpose. Since the petitioner is a director of a company
he ought to have come to India with business VISA.
9. Having heard the learned Counsels for the petitioner and the State
of West Bengal and on careful perusal of the case diary it is ascertained
that the Investigating Officer did not collect any document to prove that
the present petitioner was engaged in the management and day to day
affairs of the company during his stay in India. Merely because the
petitioner is a director of a company he cannot be said to be visit India for
business purpose only. He may visit the country on tourist VISA solely to
meet his friends and relatives. It is the case of the petitioner that he came
to India to meet his fiancé to settle his marriage.
10. The learned Magistrate failed to consider as to whether case diary
contains any document to prove that the petitioner was engaged in day to
day affairs or the management of the company of which he is the director.
In the absence of such evidence the claim of the prosecution that he
required to come to India by business VISA cannot stand.
11. In view of the above discussion I have no other alternative but to set
aside the impugned order dated 9th November, 2022 passed by the
learned Chief Judicial Magistrate at Alipre, south 24 Parganas.
12. The learned Chief Judicial Magistrate, Alipore is directed rehear the
application under Section 239 of the Cr.P.C in the light of the observation
made hereinabove and passed a reasoned order within three weeks from
the date.
13. The instant revision is accordingly disposed of.
(Bibek Chaudhuri, J.)
