Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.NO.2200604/PW/2019
Filed on : 12022019
Registered on : 12022019
Decided on : 15072019
Duration : 00Y, 05M, 03D
Exh. : 16
IN THE COURT OF THE ADDIL. CHIEF METROPOLITAN MAGISTRATE,
22nd COURT, ANDHERI, MUMBAI.
(Presided Over by S. N. SALVE)
Judgment Under Section 355 of the Code of
Criminal Procedure
(a) The serial & CNR No. of
the case;
: C. C. No. 2200604/PW/2019
CNR No. MHMM190025052019
(b) The date of commission of
the offence;
: 05012019
(c) The name of the
complainant
(if any);
: The State of Maharashtra
(At the instance of Sahar Airport
Police Station in Crime No.
09/2019)
(d) The name of the accused
person and his parentage
and residence;
: Kirubakaran Ganeshan @
Muttukrishnan Perumal
Age : Adult Occp : Nil
R/o. : 865, Sri Lankan Refugue
Camp, Peddikuppam, Thiruvallur,
Tamil Nadu601 201.
(e) The offence complained
of or proved;
: Under Sections 465, 468, 471, 420
read with Section 34 of the Indian
Penal Code, Section 12 (1) (b) of
the Passport Act and Section 14
(a) (b) of the Foreigner's Act.
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(f) The plea of the accused
and
his examination( if any);
: Accused pleaded not guilty and
claimed to be tried.
(g) The final order; : Accused is convicted
(h) The date of such order; : 15072019
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Mr. Bashir Patel for accused.
J U D G M E N T
(Delivered on 15072019 )
The accused, Sri Lankan National stands prosecuted for the
offence punishable under Sections 465, 468, 471, 420 of the Indian
Penal Code (For short, IPC), offence under section 12 (1) (b) of the
Passport Act 1967 and offence under section 14 (a) (b) of the
Foreigner's Act, for having fraudulently obtained Indian Passport by
submitting incorrect details, procured the fake passport for the purpose
of cheating, used the fake passport as genuine, cheated the Immigration
Authority, contravened the provisions of Passport Act and Rules framed
thereunder and further for having entered into India or stayed in India
without valid permit.
2. The prosecution case, in a nutshell, is that on 04012019
at about 20.00 hrs. the informant Arvindkumar Atri, Immigration
Officer was performing his duty as Duty Officer. On 05012019 around
1.30 hrs., one passenger was brought by S. N. Airlines, who was
deported by the Brussels Immigration Authority for the reason 'No
documents.' The said passenger was then referred to the
WinginCharge and on interrogation he disclosed that his real name is
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'Kiruvakaran Ganeshan', who came from Sri Lanka and with the help of
agent obtained passport in India. As the said passenger contravened the
provisions of Passport Act, Foreigner's Act and he fraudulently obtained
passport by furnishing incorrect details, he was handed over to Sahar
Police Station and F.I.R. was lodged against him.
3. On the basis of FIR, Crime No. 9/2019 was registered
against the accused for the offences punishable under sections 465, 468,
471, 420 of the Indian Penal Code, offence under section 12 (1) (b) of
the Passport Act 1967 and offence under section 14 (a) (b) of the
Foreigner's Act. The investigation of the crime was carried out by PSI
Yamgar. On completion of the investigation, he submitted charge
sheet.
4. I framed charge (Exh.2) against the accused for the
offence punishable under sections 465, 468, 471, 420 of the Indian
Penal Code, offence under section 12 (1) (b) of the Passport Act 1967
and offence under section 14 (a) (b) of the Foreigner's Act. It was read
over and explained to him in vernacular to which he pleaded his
innocence and claimed to be tried. The statement of accused under
Section 313 of the Code of Criminal Procedure is recorded after the
witnesses for the prosecution have been examined. His defence is that
he is from Sri Lanka, came to India via Tamil Nadu by boat and sought
Asylum in India and thereafter obtained passport.
5. The points for determination along with my findings with
reasons thereon are as follows :
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Sr.
No.
Points Findings
1 Does the prosecution prove that the accused forged
the passport ?
Yes
2 Does it further prove that the accused committed
forgery of passport for the purpose of cheating ?
Yes
3 Does it further prove that the accused used the
forged passport which he knew to be forged?
Yes
4 Does it further prove that the accused cheated the
informant Arvindkumar Atri, Immigration Officer
by procuring forged passport ? Yes
5 Does it further prove that the accused by
furnishing false information procured Indian
Passport ? No.
6 Does it further prove that the accused
unauthorizedly entered in India via Sri Lanka,
remained in India and thereby violated conditions
of valid visa?
No.
7 What order ? The accused is
convicted
R E A S O N S
6. In order to establish the guilt of the accused, the
prosecution has examined in all three witnesses. They are, the
informant Arvindkumar Atri, Immigration Officer (PW 1) at Exh4,
WingInCharge, Deshraj (PW 2) at Exh9, and PSI Yamgar (PW 3),
who carried out the investigation of the crime.
: Point No. 5 :
7. It is the case of the prosecution that, the accused being
Sri Lankan National entered into India and by knowingly furnishing
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false information obtained Indian Passport from Tiruchirapalli Passport
Office.
8. In so far as the offences under the provisions of Passport
Act are concerned Section 15 of the Passport Act mandates that no
prosecution shall be instituted against any person in respect of any
offence without previous sanction of the Central Government. In the
present case at hand, the prosecution has not obtained sanction as
required under Section 15 of the Passport Act. In absence of sanction as
required under section 15 of the Passport Act, the prosecution against
the accused for the said offence is not maintainable. In this view of the
matter, the accused is entitled for acquittal for the offence punishable
under section 12 (1) (b) of the Passport Act.
: Point Nos. 1 to 4 :
9. All these points are dealt with simultaneously so as to avoid
the repetition of discussion of evidence, which is common for all these
points and also the facts involved in the decision of these points are
such that as can with advantage be discussed together.
10. It is the case of the prosecution that the accused being
Sri Lankan entered into India or stayed in India and fraudulently
obtained passport by furnishing incorrect information. In order
to establish the aforesaid fact, the evidence of informant Arvind Atri
(PW 1) Immigration Officer, Wingincharge Deshraj (PW 2) and PSI
Yamgar (PW 3) who carried out the investigation of the crime is
relevant.
11. The informant Arvindkumar Atri, Immigration Officer
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(PW1) deposed that on 05012019 at about 1.00 a.m. the accused was
brought by Brussels Airlines as deportee on Deportee Note for the
reason 'No document.' His further evidence shows that he interrogated
the accused who disclosed that he is Sri Lankan refuge and since 1990
residing in Chennai refuge camp. His further evidence shows that the
accused disclosed that he came into contact with agent Endron and by
paying consideration of Rs. 5 lakhs procured Indian passport having
visa of Guinea and on that passport he travelled to Belgium from
Mumbai. He further deposed that the accused produced Sri Lankan
refuge identity card (ArticleA), refuge certificate (ArticleB), copy of
Icard issued by the Government of Tamil Nadu (ArticleC), birth
certificate of daughter of accused issued by Ministry of External Affairs,
Colambo (ArticleD). In his further evidence, he has proved colour copy
of passport (ArticleH), Station Diary (Exh6), Deportee Note (Exh7),
air ticket (Exh8). In crossexamination, he admitted that on the same
passport the accused went to Brussels. He admitted that as a refuge
Tamil Nadu Government has provided Government facility like ration
card, Aadhar card, driving license, etc. He has also admitted that
according to PISON system passport of the accused was genuine.
Evidence of informant Arvindkumar Atri (PW 1) Immigration Officer is
duly corroborated by the evidence of Deshraj Immigration Officer
(PW 2) in material particulars, who deposed that the accused was
deported by Brussels Immigration Authority and in interrogation he
disclosed that he being Sri Lankan entered into India or stayed in India
and obtained Indian passport. PSI Yamgar (PW 3) has duly proved the
production panchnama under which documents viz. Birth certificate
issued by Sri. Lankan Government, refuge certificate, refuge ration card,
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Indian Aadhar card, Indian driving license, copy of PISON and coloured
photocopy of passport, etc. were seized.
12. From the evidence of prosecution witnesses and the
documents placed on record and proved in the evidence, the fact that
the accused is Shri Lankan National is duly established. So also, he
obtained Indian passport is also duly established by the prosecution and
this fact has also not been denied by the accused. On the contrary, the
suggestions put to the witnesses go to show that the accused is holding
Indian Passport. In so far as obtaining Indian Passport by foreign
national is concerned, Section 20 of the Passport Act is relevant which is
reproduced as follows.
20. Issue of passport and travel documents to
persons who are not citizens of India – Notwithstanding
anything contained in the forgoing provisions relating to
issue of passport or travel documents, the Central
Government may issue or caused to be issued passport or
travel documents to a person who is not a citizen of India,
if that Government is of the opinion that it is necessary so
to do in the public interest.
13. From the plain reading of the aforesaid provision, it is very
clear that a passport can be refused on the ground that the applicant is
not a citizen of India, but in special cases having regard to the
International Convention and usages, it may become necessary for the
Government to issue a passport or travel documents to a person who is
not citizen of India. In the instant case at hand, it is not the case of the
accused that the Central Government has issued passport or travel
documents in special cases. The accused has not produced on record
any notification whereby the Central Government has issued passport or
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travel documents to him not being a citizen of India. Though there is
bar of Section 20 of the Passport Act, the accused by furnishing
incorrect information and documents has fraudulently obtained
passport. The accused has committed forgery of passport by making
false documents within the meaning of Sections 463 & 464 of the
Indian Penal Code and has committed offence punishable under Section
465 of the Indian Penal Code. Similarly, the accused committed forgery
of the passport and used the said passport at the Airport for the purpose
of cheating to Immigration Authority and thereby he has committed an
offence punishable under Section 468 of the Indian Penal Code.
Similarly, the accused has used as genuine a forged passport knowingly
or having reason to believe to be a forged passport. Similarly, the
accused by presenting the Indian Passport at the Chhatrapati Shivaji
Maharaj International Airport to the Immigration Authority for
immigration clearance and thereby cheated the Immigration Authority
and thus he has committed an offence punishable under Section 420 of
the Indian Penal Code. I, therefore, hold that the accused has
committed offences punishable under sections 465, 468, 471 and 420 of
the Indian Penal Code. Accordingly, I answered point Nos. 1 to 4 in the
affirmative.
: Point No. 6 :
14. It is the case of the prosecution that the accused entered
into India or stayed in India without permit required for such stay and
thereby committed an offence under the Foreigner's Act. Admittedly,
the accused is Sri Lankan National. It is the case of the accused that he
came in India for Asylum and staying in a refuge camp. It is seen from
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the evidence of I.O. that the Tamil Nadu Government has provided
various facilities like Aadhar card, Ration Card and other facilities.
From the facilities provided by the Tamil Nadu Government, it cannot
be said that the accused is staying in India illegally. Under these
circumstances, it cannot be held that the accused entered into India or
stayed in India without valid permit required for such stay. I, therefore,
hold that prosecution has failed to establish that accused has committed
an offence punishable under Section 14 (a) (b) of the Foreigner's Act.
Accordingly, I answer point No.6 in the negative
: POINT NO.7 :
15. In view of my affirmative findings as to point Nos.1 to 4
accused is liable to be convicted.
16. Before hearing the accused on the point of sentence, I have
considered whether the benefit of the Probation of Offenders Act can be
extended to the accused. The offences proved against the accused are
relating to forgery of passport. After having considered the nature of
offences proved against the accused, I am of the opinion that this is not
a fit case wherein powers under Section 4 of the Probation of Offenders
Act can be exercised.
17. Heard accused on the point of sentence. He submitted that
he is Sri Lankan National and entered into India for Asylum. He
submitted that he is staying in Refuge Camp in Tamil Nadu along with
his family. He is the only earning member in his family. He, therefore,
prayed for a lenient view.
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18. As against this, the Ld. A.P.P. submitted that considering
the nature of the offences, maximum sentence be imposed.
19. After hearing the accused and Ld. A.P.P. for the State on
the point of sentence and after having considered nature of the
offences, and the fact that the accused is the Sri Lankan refuge and
staying in Tamil Nadu along with his family, I am of the opinion that
following sentences would squarely meet the ends of justice.
20. In the result, following order is passed:
O R D E R
(i) The accused Kirubakaran Ganeshan @ Muttukrishnan Perumal
is convicted for the offences punishable under Sections 465,
468, 471 and 420 of the Indian Penal Code under Section 248
(2) of the Code of Criminal Procedure.
(ii) He is sentenced to suffer Simple Imprisonment for
06 (Six) months for the offence punishable under Section 465
of the Indian Penal Code.
(iii) He is sentenced to suffer Simple Imprisonment for 06 (Six)
months and to pay a fine of Rs. 1,000/ (Rs. One Thousand
Only) for the offence punishable under Section 468 of the
Indian Penal Code. In default of payment of fine, he shall suffer
further Simple Imprisonment for 15 (Fifteen) days.
(iv) He is sentenced to suffer Simple Imprisonment for
06 (Six) months for the offence punishable under Section 471
of the Indian Penal Code.
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(v) He is sentenced to suffer Simple Imprisonment for
06 (Six) months and 15 (Fifteen) days and to pay a fine of
Rs.1,000/ (Rs. One Thousand Only) for the offence punishable
under section 420 of the Indian Penal Code. In default of
payment of fine, he shall suffer Simple Imprisonment for 15
(Fifteen) days.
(vi) All substantive sentences shall run concurrently.
(vii) Accused is in Jail from 05012019. This period of detention
undergone by him in jail be set off from the sentence of
imprisonment imposed herein above under section 428 of
Cr.P.C.
(viii) He is acquitted of the offence punishable under Section 12 (1)
(b) of the Passport Act and Section 14 (a) (b) of the Foreigner's
Acts under Section 248 (1) of the Code of Criminal Procedure.
(ix) The seized property i.e. copy of passport and other documents
be returned to Immigration Authority, after appeal period is
over.
(x) Copy of the Judgment be supplied to the accused free of cost.
Date : 15072019.
Sd/
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
*csj
Dictated on : 15072019
Transcribed on : 15072019
signed on : 15072019
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