21October2017

Goa's Spirited Online Weekly Magazine.

Elvis Gomes’ Iberian dream

December 30, 2013-January 5, 2014

Team GS

Is he obfuscating the facts?

Goanspirit HandcuffsThe complaint filed by the personal secretary of the Benaulim legislator Caitu Silva at the Colva police station against Churchill Alemao, his wife Maria Fatima Fernandes, children Sara Anina Alemao, Sharon Alemao and Aninha Alemao for the alleged offence committed by them under CrPC, section 14 of the Foreigners Act, sections 4 and 5 of the Registration of Foreigners Act, 1939 and section 12 of the Passport Act, 1967; appears to be farcical.  For sure, it was conceived more as a means to deflect attention from his Boss’s own predicament for possessing a Portuguese passport. 

Incidentally, Wilfred Mesquita, the Vice-President of the BJP, has also revealed the party’s stand on Caitu who is seen as a Parrikar-man. He has said, “Police shouldn’t take any action until the entire issue is settled by the Supreme Court. The matter is sub-judice. There’s nothing wrong if an FIR is filed, but the police have no power to take action. Who are the police to decide when the Supreme Court hasn’t decided yet?”

However, this is what the sections say.  You be the judge.

Section 14 in The Foreigners Act, 1946

“If any person contravenes the provisions of this Act or of any order made there under, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine and if such person has entered into a bond in pursuance of clause (f) of sub- section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting Court why such penalty should not be paid”.

We Say…

This section only speaks of the penalty that has been prescribed if and when the person is prosecuted.  We ask how on the basis of a penalty that has been prescribed, can the Colva police file an FIR which is what the legislator’s P.A Elvis Gomes expects of them.  Also, we are not aware if any evidence was given to the police.

Section 4 in The Registration Of Foreigners Act, 1939

If any question arises with reference to this Act or any rule made there under, whether any person is or is not a foreigner, or is or is not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872 ) lie upon such person.

We Say…

To us this section appears to be a case of burden of proof, so we ask on what basis can the police file an FIR when there appears to be no probable cause yet?

Section 5 in The Registration Of Foreigners Act, 1939

Any person who contravenes, or attempts to contravene, or fails to comply with, any provision of any rule made under this Act shall be punished, if a foreigner, with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both, or if not a foreigner, with fine which may extend to five hundred rupees.

We Say…

Again, like the first section, this one too speaks of the penalty that has been prescribed.  On what basis can the police file an FIR?  Again, were the police given any evidence by Gomes?

Section 12 in The Passports Act, 1967

(1) Whoever,
(a) Contravenes the provisions of section 3; or
(b) Knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or
(c) Fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or
(d) Knowingly uses a passport or travel document issued to another person; or
(e) Knowingly allows another person to use a passport or travel document issued to him, shall be punishable with imprisonment for a term which may extend to 1[two years or with fine which may extend to five thousand rupees] or with both.
(1A) Who ever, not being a citizen of India,
(a) Makes an application for a passport or obtains a passport by suppressing information about his nationality, or
(b) Holds a forged passport or any travel document, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees.
(2) Whoever abets any offence punishable under 1[Sub- section (1) or sub- section (1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub- section for that offence.
(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made there under for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.
(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.

We Say…

Clearly, this section too speaks of the rules in force and the penalty prescribed.  Without a doubt what the legislator is trying to do is take the heat of him, while he simultaneously applies pressure on Churchill Alemao, who it appears is not entirely innocent himself in at least more ways than one.  In fact, all the very sections of the CrPC could turn around and bite Silva himself where, as they say, it hurts the most.  Silva must remember that attacking the opposition might just not be his best form of defense.

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