Final Order 3

Order Details: Copy  of Judgment
Pdf Text: MHMM190095502018 Received on :- 23/08/2018
Registered on :- 26/09/2018
Decided on :- 31/08/2026
Duration :- Y-08 M-00 D-08
Exh. :- 17
Part ‘A’
[Para 44(i) of Chapter VI of Criminal Manual]
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
22nd COURT, ANDHERI, MUMBAI
(Presided over by : Shri. U. L. Pathak)
C. C.No.2268/PW/2018
FIR No.
Police Station
350/2017
SAHAR Police Station
COMPLAINANT State of Maharashtra
Through :-
SAHAR Police Station
Represented By A.P.P. Mr. K. S. Jamdhade, for the State.
ACCUSED
Mohammad Ali S/o Fakruddin
Age :- 44 years, Occupation :- Nil
R/o.: Word No.45- Bilal Masjid, Pipali Chouk,
Zun Zun, Rajasthan.
Represented By Advocate Mr. Sanjay Tiwari
Part ‘B’
[Para 44(ii) of Chapter VI of Criminal Manual]
Date of Offence 18/11/2017
Date of F.I.R. 19/11/2017
Date of Charge-sheet 23/08/2018
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JUDGMENT EXH.17
Date of Framing of Charges 04/04/2024
Date of commencement of evidence 30/09/2025
Date on which Judgment is reserved 31/08/2026
Date of the Judgment 31/08/2026
Date of the Sentencing Order, if any --
Accused Details
Rank of
accused
Name of
accused
Date
of
Arrest
Date of
Release
on Bail
Offences
charged
with
Whether
acquitted
or
convicted
Sentence imposed Period of
Detention
Undergone
during
Trial for
purpose of
Section
428, Cr.P.C.
1. Mohammad
Ali S/o
Fakruddin
19/11
/2017
12/12/
2018
Sec.420
of IPC
r/w sec.
12 of
Passport
Act
acquitted -- --
Part 'C'
[Para 44(iii) of Chapter VI of Criminal Manual]
LIST OF PROSECUTION / DEFENCE / COURT WITNESSES
A. Prosecution :
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS, OTHER
WITNESS)
PW1/Exh. 05 Kranti Sarang Patil Informant
B. Defence Witnesses, if any :
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS, OTHER
WITNESS)
- - -
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C. Court Witnesses, if any :
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS, OTHER
WITNESS)
- - -
LIST OF PROSECUTION / DEFENCE / COURT EXHIBITS
A. Prosecution :
Sr. No. Exhibit Number Description
1. Exhibit- 06/PW-01 Passport
2. Exhibit- 07/PW-01 Boarding Pass
3. Exhibit- 08 & 09 /PW-01 FIR and Printed FIR
B. Defence :
Sr. No. Exhibit Number Description
- - -
C. Court Exhibits :
Sr. No. Exhibit Number Description
- - -
D. Material Objects :
Sr. No. Material Object Number
Description
1
-
-
J U D G M E N T
(Delivered on 31/08/2026)
The accused is charged for the offences punishable under
Section 420 of the Indian Penal Code, 1860 (for the sake of brevity
hereinafter referred to as 'I.P.C.') and under section 12 of the Passport
Act.
2] In short, the case of the informant that accused has
deported by Hail (Soudi Arabia ) Immigration Authority by mentioning
reason ‘Blacklisted in KSA’ Via Sharjaha to India on 18/11/2017 at
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JUDGMENT EXH.17
about 20.45 through Plane No.G-9/401. Then Staff of Air India brought
accused before Wing Incharge Mr. Sunil Zarekar alongwith his Passport,
Deportee Note, Tourist Visa and letter from the Airlines. On inquiry
with the accused they learnt that accused was deported from kingdom
of Saudi Arabia. The accused initially went to Sharjah on Tourist Visa
on 12/11/2017 and then tampered the said visa by affixing fake
employment visa on the passport. In order to avoid the process of
obtaining Protector of Emigrants (P.O.E.) the accused initially obtained
Tourist Visa and after reaching Sharjah he procured fake employment
Visa and then travelled from Sharjah to Hail, Saudi Arabia. Thereafter,
Immigration Authority Hail deported the accused to Mumbai. Therefore,
Mumbai Immigration officer lodged report at Sahar Police Station
against the accused.
3] On the basis of report C.R. No.350/2017 was registered
under sections 420 of IPC against the accused. Investigation of the case
was carried out by P.S.I. Shri. Mahesh Patil. After investigation he found
sufficient evidence against the accused, hence forwarded charge-sheet
under supra sections.
4] Charges were framed against accused on 04/04/2024 by
my Ld. Predecessor. He pleaded not guilty and claimed to be tried.
5] To substantiate the charges levelled against the accused,
prosecution examined Immigration Officer Kranti Sarang Patil as PW
No.1 vide Exh-05. From the scrutiny of the cross examination and
answers given by the accused during the statement recorded under
Section 313 Cr. P. C. (Exh-15), it appears that defence of accused is of
denial and false accusations. However, no evidence is led in defence.
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6] Perused the evidence on record. Heard Ld.APP and
advocate for accused.
7] In view of above rival facts following points arose for my
determination and I record my findings thereon with reasons thereof :
Sr. No.
Points
Findings
1] Does the prosecution prove that accused
intentionally cheated Mumbai
Immigration Authority by travelling from
Mumbai to Sharjah, possessing Tourist
Visa of UAE and pretended that accused
had gone there for tour and again
travelled from Sharjah to Hail (Soudi
Arabia) on employment Visa, in order to
avoid immigration clearance process
though the passport is having ECR
(status) and thereby committed an
offence punishable under section 420 of
the IPC?
In the negative.
2] Does the prosecution prove that accused
travelled in contravention of section 3
r/w.12(1)(a) of the Passport Act and
thereby committed an offence punishable
under section 12 of the Passport Act?
In the negative.
3] What order ? As per final order.
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R E A S O N S
AS TO POINT NOs. 1 TO 3 :-
8] In order to prove the charges, prosecution has examined
the Immigration Officer Kranti Patil (PW No.1 Exh-05) - The informant.
The offence was registered vide crime No.350/2017 on 19/11/2017 on
the report lodged by the Informant. The accused was handed over with
original passport(Exh.06), boarding pass(Exh.07) to her. Thereafter,
she lodged Report.
9] In the cross-examination it is admitted by the witness (PW
No.1 Exh-05) that she did not mentioned the Passport number in the
FIR on which the alleged employment visa was affixed. She did not
contact Saudi Embassy to verify the kind of visa which was affixed on
the passport of the accused. Also she did not mentioned in the FIR that
employment visa was fake. The alleged employment visa was obtained
beyond India.
10] From the above testimony, it transpires that entire
prosecution case is based on the allegation that the accused affixed fake
employment Visa on the passport. The prosecution did not lead any
cogent evidence regarding the alleged cheating. It is only the issuing
authority who can verify the visa and state whether it is forged or not.
Investigating officer did not contact Saudi Embassy to verify the kind of
visa which was affixed on the Passport of accused. Resultantly, the
offence of cheating is not proved for want of evidence.
11] The Immigration Officer admitted during her cross-
examination that the impugned visa was obtained beyond India. Thus,
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the alleged crime occurred at foreign soil. But there is a proviso, that,
notwithstanding anything in any of the preceding sections of this
chapter i.e. Chapter 13, no such offence shall be inquired into or tried in
India, except, with the previous sanction of the Central Government.
Now, this provisions of Section 188 of the Cr.P.C. are mandatory. The
word that was used is “shall” and therefore non-compliance of it, would
vitiate the prosecution and/or other consequential orders passed by this
Court, after it has taken the cognizance. This is because the provision of
Section 188 of Cr.P.C. itself, provides that not only the trial cannot be
held, no any inquiry be done. Even it means, that there is a bar to take
cognizance of such offence and therefore sanction of prosecution is a
pre-condition for taking cognizance of the offence and therefore this
Court has observed that accused could be discharged. However, this fact
was not raised, any time herein before, and this issue of requiring a
previous sanction has not been taken cognizance of, by this Court,
eventually resulting in taking cognizance and conducting the trial. Now,
once charges are framed and trial is conducted, this Court will have to
only acquit the accused, as proceedings are deemed to be vitiated.
12] Further, any violation of rules relating to passport attracts
provision of Passport Act. At the most, if the accusation is taken as it is,
it would be violation of section 12 of the Passport Act. To rope accused
for violation of Passport Act, the investigating agency requires sanction
from the Competent Authority, as mandated u/s. 15 of the Passport Act.
Although the Investigating Agency roped accused under IPC provisions,
still the offence regarding alleged manipulation in the passport took
place abroad. Therefore, in such contingency u/s. 188 of Cr.P.C. before
launching prosecution or investigation the investigating agency is
required to obtain sanction of Central Government, which is admittedly
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missing. Thus, any offence surfaced in violation of mandatory provision
renders it meaningless.
13] In view of aforesaid discussion, this Court concludes the
charge put against accused remained unproved for want of clinching
evidence and permission from the Competent Authority. The points are
thus answered in the negative.
14] The seized muddemal property i.e. The seized Passport be
returned to the accused and Deportee Papers, Tourist Visa Paper, Plane
Ticket, Copy of Deported Flight Schedule be destroyed after appeal
period is over.
15] Since the point Nos. 1 and 2 are determined in the
negative, this Court concludes that, the prosecution has failed to
prove its case beyond reasonable doubt and the accused is liable to
be acquitted. Hence, to answer to point No.3, I pass following
order:-
ORDER
1. Accused is hereby acquitted of the offence punishable under
Sections 420 of Indian Penal Code 1860 read with Section 12
of the Passport Act vide Section 248(1) of The Code of Criminal
Procedure, 1973.
2. The P.R. bonds of accused is cancelled.
3. The accused to furnish P.R. of Rs.25,000/- in compliance to
section 437(A) of The Code of Criminal Procedure, 1973.
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4. The seized muddemal property i.e. Indian Passport be
returned to accused and the other muddemal property i.e.
deportee papers, Tourist Visa papers, Plane Ticket, Copy of
Deported Flight Shedule, be destroyed, after appeal period is
over.
Date.:- 31/08/2026
(U.L.Pathak)
Addl. Chief Judicial Magistrate
22nd Court, Andheri, Mumbai
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