Abinash Dixit v. State of Madhya Pradesh, CRIMINAL APPEAL NO. 267 OF 2022
Read the order here.
Date of the decision: 22.02.2022
Court: Supreme Court of India
Judges: Justice Sanjiv Khanna and Justice Bela M. Trivedi
Summary: The Police had framed charges against the appellant under sections 7 and 14 of the Foreigners Act, 1946, for facilitating the visit of two Chinese nationals on tourist visas. The Supreme Court, in an appeal against the order of the Madhya Pradesh High Court, quashed criminal proceedings against the appellant due to a lack of basis and foundation.
Facts: The case came before the Supreme Court as an appeal to Madhya Pradesh High Court’s order wherein the Court dismissed the appellant's petition to quash criminal proceedings against him. The appellant was a Senior Engineer (Construction) at Sprng Energy Private Limited, which provided the labour force and other resources for the Rewa Solar Plant Project (Rewa)—a joint venture of M.P. Urja Vikas Nigam and Solar Energy Corporation of India. It is a prohibited and protected place which requires prior permission for entry. Adarsh Kumar Singh, a worker for M/s. P.S. Enterprises (India's representative of China Bosan Robotics Limited Company) took two Chinese citizens to Rewa. The two Chinese citizens were employees of Bosan Robotics Ltd. and had come to India on tourist visas. On finding that the foreigners were demonstrating their products at the site, they were fined by the police and directed to leave India for working in violation of their visa conditions.
Further, a case was registered under Sections 7 and 14 of the Foreigners Act, 1946, against the appellant. Section 7 states that hotel keepers and others must furnish particulars about foreigners' lodging and sleeping accommodations. Section 14 provides penalties for violation of the provisions of the Act. The allegations were that the appellant facilitated this visit by the two Chinese citizens. Notably, the police had not found any violation of Section 7 of the Foreigners Act and did not include the offence in the charge sheet after concluding their investigation. Nevertheless, the trial court framed charges against the accused under Section 7, read in connection with Section 14.
Later, the case went to the Madhya Pradesh High Court. The High Court said that the ingredients of Section 7 of the Foreigners Act were not attracted against the applicant, but section 14-A and section 14-B did. The High Court was of the opinion that there existed enough material on record against the applicant to proceed with the provisions of the Foreigners Act. Thus, the High Court decided not to quash the case proceedings.
Holding: The Supreme Court allowed the appeal and quashed criminal proceedings against the appellant while observing that “it is apparent that the prosecution of the appellant is not justified and warranted.” The Supreme Court observed that the respondent’s lawyer could not explain the trial court’s reasoning when drafting the charges under Sections 7 and 14 of the Foreigners Act. Thus, it criticised the Trial Court’s justification as being hard to comprehend.
The Supreme Court further found no basis for the charge of abetment against the appellant. The Court observed that for violation of Section 14-C in The Foreigners Act, the accused must have abetted the offences under Sections 14, 14-A, and 14-B.
The Supreme Court referred to the definition of ‘abetment’ to assess whether the charge of Section 14-C was appropriate. Section 14-C states, “Whoever abets any offence punishable under section 14, 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 Supreme Court observed that the word ‘abet’, an essential ingredient of the section, “ means to aid, to encourage or countenance. 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 the offence of abetment." (paragraph 7).
In light of this, the Apex Court went on to observe that there existed no proof or allegation that the appellant knew or had reason to know that the Chinese national had entered the country on tourist visas. The Court consequently concluded that the accusation of abetment against the appellant is without merit, as there was no supporting documentation or evidence.
Significance:
Before appreciating the SC’s decision, we must understand what abetment is and what it constitutes. Section 14-C uses the word ‘abet’and it is defined under Section 107 of the IPC. The offence of abetment is distinct and separate. A person abets the doing of a thing when he either instigates another person to do that thing or engages in conspiracy with two or more people for doing that thing or intentionally aiding, by act or illegal omission, the doing of that thing. Since Abinash never instigated or aided the Chinese nationals to remain in any area in India exceeding the period for which the visa was issued to them, we cannot say he abetted under Section 14-C. He only let the Chinese nationals demonstrate their product at the site. This passivity cannot be construed as abetment. The learned counsels of Lee Gwangmin vs The State Represented By and Balasubramaniyan vs State Rep. By have recently relied upon this case to support their contentions, and the judgements were in their favour.
Abetment is a substantive offence where the actual commission of an offence by the person who intended to do it is not required; instead, one is held liable for mere instigating, conspiring, and aiding others for the commission of the offence. Mere abstention from preventing an offence is generally not sufficient to charge any person of abetment. However, if the person has direct control over the conduct of another person, then he fails to prevent that other person from committing the offence. Then, in such a scenario, he will be liable for abetment.
Several times it happens where mere passivity can be considered synonymous with abetment, and innocent people get convicted. The Supreme court, in its order, has meticulously stated that insouciance or mere passivity cannot be equivalent to the offence of abetment. Any nonchalant act cannot be considered an abetment. Abetment takes active efforts to instigate or conspire; when these essential elements cannot be formed in the action of the accused, it cannot be abetment.
Table of Authorities:
State Of Haryana And Ors vs Ch. Bhajan Lal And Ors, 1992 AIR 604
Charan Naskar vs State Of West Bengal & Ors, 2003 CALLT HC 1 228
Lee Gwangmin vs The State Represented By, Crl.O.P.No.2701
Balasubramaniyan vs State Rep. By, CRL.O.P.(MD)No.19864
Resources:
Network LN, “No Offence Of Abetment Under Section 14C Of Foreigners Act If There Was No Awareness About Visa Status Of Foreigners: Supreme Court” (Live Law, 2022)<https://www.livelaw.in/top-stories/supreme-court-passivity-insouciance-not-abetment-14c-foreigners-act-abinash-dixit-vs-state-of-madhya-pradesh-192930>accessed August 12, 2022
Anandi Tiwari, '[Foreigners Act] Mere passivity, not abetment; No offence under S.14C if person not aware of visa status of foreigners: Supreme Court' ( Bar and Bench 2022) < www.barandbench.com> accessed 11th August, 2022
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Areej Abdul Samad.