Madras High Court
Balasubramaniyan vs State on 9 March, 2022
Crl.O.P.No.5398 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.5398 of 2022 and
Crl.M.P.No.2930 of 2022
Balasubramaniyan ...Petitioner
-Vs-
State
Rep by the Inspector of Police,
E-3, Minjur Police Station,
Minjur, Tiruvallur District.
Crime No.600 of 2021. ..Respondent
Prayer : Criminal Original Petition is filed under Section 482 of the
Criminal Procedure Code, praying to call for the records pertaining to
Charge Sheet in respect of the Petitioner/A-3 in P.R.C.No.18 of 2021
pending Committal on the file of the Judicial Magistrate Court - II at
Ponneri and quash the same.
For Petitioner : Mr.S.Vasudevan
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
1/9
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.5398 of 2022
ORDER
The Criminal Original Petition has been filed to call for the records
pertaining to PRC No.18 of 2021 pending on the file of the learned Judicial
Magistrate Court - II at Ponneri.
2. The petitioner is A3 in Crime No.600 of 2021 registered by the
respondent. The respondent after completing investigation, filed the final
report, which is pending in PRC No.18 of 2021 on the file of the learned
Judicial Magistrate Court - II at Ponneri.
3. The averments as per the final report are extracted hereunder:-
That the witness Tmt.Daisen Murali is working
as the Assistant Director, Bureau of Immigration,
Chennai-Ennore Seaport, Chennai. The A1 is a
citizen of Indonesia and is working as the 2nd
Engineer in the vessesl MT Asian Grace, flag South
Korea. The A2 is a citizen of South Korea and
working as the Captain of the MT Asian Grace, flag
South Korea. The A3 is a citizen of India and is the
Manager of Samudra Marine Service Pvt. Ltd and
was maintaining the above said vessel 'MT Asian
Grace'.
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Crl.O.P.No.5398 of 2022
That on 02.09.2021, the above said vessel 'MT
Asian Grace' berthed at Kamarajar Port Ltd.,
Ennore and on 03.09.2021 early morning at about
04.00 hrs., the A1 disembarked from the above said
vessel and entered into India without any valid
permission or visa under the gise of taking treatment
and went outside the main gate of the above said
port and took treatment at National Hospital at
No.12, Manali Express Highway, Eranavoor and was
caught by the CISF, while he was entering into the
port around 10.00 hrs., through the above said main
gate and the A1 entered into the area in India
without any valid documents required for such entry
and committed an offence punishable under Section
14A(b) of the Foreigners (Amendment) Act, 2004 and
the A2 and A3 abetted the A1 by facilitation him to
go outside the vessel and port and therby the A2 and
A3 committed an offense punishable U/s 14-C of the
Foreigners (Amendment) Act, 2004.
Thereby, the A1 appears to have committed
and offence punishable U/s 14A(b) of the Foreigners
(Amendment) Act, 2004. Hence the report.
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Crl.O.P.No.5398 of 2022
4. Challenging the final report, the present petition has been filed.
5. Mr.S.Vasudevan, learned counsel for the petitioner would submit
that the petitioner is arrayed as A3 in this case. He would further submit that
the petitioner is an Indian National, working as Manager, Samudra Marine
Services Pvt Limited, Chennai who are the local Shipping Agents of the
vessel MT Asian Grace, which was berthed at Kamarajar Port Limited,
Ennore on 02.09.2021. He would further submit that A1, who is an
Indonesian National and the second Engineer in the vessel MT Asian Grace,
requiring medical attention during Covid period had disembarked from the
ship without informing the captain of the vessel A2 and the petitioner and
he was apprehended by the CISF on his return from treatment.
6. He would further submit that in order to sustain a charge for
offence under Section 14-C of the Foreigners (Amendment) Act, 2004, there
should be positive evidence to show that the petitioner abetted, aided or
instigated the other accused to commit the offence. Other than the averment
that the petitioner is the Manager of the Company which is the local
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Crl.O.P.No.5398 of 2022
Shipping Agent of the vessel, there is no material to show that the petitioner
abetted A1 to commit the offence. In this case, the first respondent has cited
14 witnesses and that there is nothing on record to show that the petitioner
abetted A1 to commit the offence.
7. In support of his contentions, learned counsel relied upon the
judgment of the Hon'ble Apex Court in ''Abinash Dixit .v. the State of
Madhya Pradesh in Criminal Appeal No.267 of 2022 (@ SLP (Crl.)
No.2266 of 2020) dated 22.02.2022''. The learned counsel for the
petitioner would submit that this Court in Crl.O.P.No.2701 of 2022 dated
02.03.2022 quashed the proceedings in respect of A2/who is also similarly
placed as that of the petitioner.
8. Mr.A.Gokulakrishnan, learned Additional Public Prosecutor would
submit that the petitioner is arrayed as A3 in this case. The petitioner is a
Indian National and Manager of M/s.Samudra Marine Services Pvt Ltd
which is the local Shipping Agent of the vessel 'MT Asian Grace'. A1, who
is the Indonesian National and the second engineer of the vessel MT Asian
Grace, had disembarked from the ship for treatment without informing
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Crl.O.P.No.5398 of 2022
anyone and he was apprehended by the CISF on his return from treatment.
He would fairly submit that though the first respondent has cited 14
witnesses, there is no material to show that the petitioner abetted the A1 to
commit the offence.
9. Heard the learned counsel and perused the materials available on
record.
10. Scanning the entire material on record there is absolutely no
materials to suggest that the petitioner abetted, aided or instigated A1 to
disembark from the vessel. It is useful to refer to the judgment of the
Hon'ble Apex Court in 'Abinash Dixit .v. the State of Madhya Pradesh in
Criminal Appeal No.267 of 2022 (@ SLP (Crl.) No.2266 of 2020) dated
22.02.2022' is extracted hereunder:-
''On the aspect of violation of Section 14-C, the
requirement is that the accused should have abetted the
offences under Sections 14, 14-A and 14-B of the
Foreigners Act.
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Crl.O.P.No.5398 of 2022
Section 14-C reads:
''14-C: Penalty for abetment. - Whoever abets
any offence punishable under section 14 of
section 14A or section 14B shall, if the act
abetted is committed in consequence of the
abetment, be punished with the punishment
provided for the offence.''
The word 'abet' is an essential ingredient of
Section 14-C, and has received judicial interpretation.
'Abet' means to aid, to encourage or countenance. An
abetment of the offence occurs when a person
instigates any person to do that offence or engages
with another person(s) in doing that thing. Mere
passivity and insouciance will not tantamount to
offence of abetment.''
11. In view of the above, the quash petition stands allowed and the
proceedings in PRC No.18 of 2021 pending on the file of the learned
Judicial Magistrate-II, Ponneri, in so far as the petitioner is concerned,
stands quashed.
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Crl.O.P.No.5398 of 2022
12. Accordingly, this Criminal Original Petition is allowed.
Consequently, connected miscellaneous petition is closed.
09.03.2022
jas/tsh
To
1.The Inspector of Police,
E-3, Minjur Police Station,
Minjur, Tiruvallur District.
2.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.5398 of 2022
A.D.JAGADISH CHANDIRA. J.,
jas/tsh
Crl.O.P.No.5398 of 2022 and
Crl.M.P.No.2930 of 2022
09.03.2022
https://www.mhc.tn.gov.in/judis
