M.L. Jain, J.
(1) The facts which give rise to this petition under Sec. 482 of the Code of Criminal Procedure 1973, and Art. 227 of the Constitution of India are that one Moezzi Akbar, an Iranian national, landed at Palam Airport, Delhi, on April 20, 1977, by the Thai Airways, flight No. TG-931, arriving from Frankfurt. He had a passport issued at Bonn on April 23, 1976, and visa issue by the Indian Embassy. When he was passing through the immigration checking counter, it was discovered that he was one of the persons whose entry into India had been banned. The Inspector Immigration, served a notice directing the Thai Airways to remove him out of India by the same or the first available flight on failing of which they were liable to a action under Sec. 14 of the Foreigners Act, 1946. The next available flight of the Thai Airways was on April 25, 1977. They undertook to send him by that flight, as a result of this he was put in the transit lounge. It was subsequently alleged that one Miss H. Kohli, who was then handling the flight, carried the passenger to the transit lounge. It appears that from the transit lounge; the sail passenger gave a slip to the check-posts and disappeared in the mainland, which fact was discovered on April 25, 1977, but an F.I.R. was lodged against him at the police station, Delhi Cantt, on April 27th, 1977. A proclamation was issued against him on June 2, 1977. He was arrested on July 21, 1977. He was produced before the Magistrate on July 22, 1977, where he was not only bailed out but upon a request made by the prosecution that the Government of India had made a deportation order in respect of him, he was discharged. Thereafter, the Thai Airways purchased a ticket on Air India Delhi-Frankfurt flight No. 119 on July 23, 1977, by which the passenger was flown out of India.
(2) In pursuance of the same F.T.R., a challan was earlier put up on June 6, 1977, against Inder Mohan Lal, the present petitioner, who is the Station Manager of the Thai International Airways Delhi Airport. The learned Magistrate on August 16, 1978, framed a charge which was later on amended. The charge is under sections 3/14 of the Foreigners Act, and it stated that the accused was directed by the Government of India on April 23, 1976, (a date wrongly mentioned) to deport the said Moezzi Akbar while he was working as an agent of the Thai Airways at Palam but he did not deport him in accordance with that order. It is against this charge that the present petition has been filed.
(3) According to clause 6 of the Foreigners Order, 1948, a civil authority can require the pilot, owner or agent of the aircraft in which a foreigner has arrived to remove him if he has been refused permission to enter or who has entered in India without its permission or who has been landed in contravention of subpara 3, and the pilot, owner or agent, as the case may be, shall comply with such requisition unless it is received more than two months after the date of the arrival of the foreigner in India. Section 6(4) of the Foreigners Act also creates a similar obligation upon the owner, agent or pilot of the aircraft to remove such passenger from India within two months from the date of such entry, if so required by an order made by the prescribed authority. Even though the period of 2 months from his entry had expired, yet the Airways transported the said passenger out of India at their own expanse as soon as he was handed over to them. It appears that the prosecution thinks that the accused had committed violation of the notice given by the civil authority on April 20, 1977, The notice required that he should be removed by the first available flight. But, the first available flight of the Thai Airways was on April 25, 1977. The short question that then arises is whether it was the duty of the Thai Airways to keep the passenger under their custody in the transit lounge until they made arrangements for his return journey, or was it the duty of the police or the immigration men to so keep him until he was put on the board on the aircraft indicated by the Thai Airways I have considered over this, matter, and it appears to me that since an offence under sec; 14 of the Foreigners Act, 1946, is a cognizable offence, it is manifestly a duty of the police to keep such an offender in their custody, but they failed in their duty and now claim to have entrusted the passenger solely to the case of the Airways. Naturally, the Airways have no means nor any legal obligation to keep and detain such Passenger in their custody. Their only obligation was to transport him whenever notice in this behalf was given to them. If, during the period of his arrival and return, the passenger makes his escape good, then, the responsibility has to be shouldered not by the Airways, but by the concerned authorities. It may be observed that the notice that was served was to transport the said passenger by the first available flight. Even if one were to say that in terms of requisition it was not necessary that the removal should take place by the flight of the same Airways but whatever flight was next available, then too, it was the duty of the police to keep the person in custody and to indicate the first available flight in which he could be deported, and the refusal of the Airways thereupon to so deport would make them liable. But, here the F.I.R. shows that the Immigration Inspector had agreed to the passenger being taken out on April 25,1977. Where is here any fault on the part of the accused even if the facts stated in the F.I.R. were held to be true I am, thereforee, satisfied that no case for contravention of Sec. 14 of the Foreigners Act is made out against the petitioner, and it will be an abuse of process of the court to allow this prosecution to continue.
(4) I, thereforee, accept this petitioner and quash the charge and discharge the petitioner of the offence he is alleged to have committed.