Punjab-Haryana High Court
Ms. Olga Timoshik vs State Of Punjab on 27 January, 2012
Crl. Misc. No.M-34841 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-34841 of 2011
Date of Decision: 27.01.2012
Ms. Olga Timoshik ....Petitioner
Versus
State of Punjab ...Respondent
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. S.S. Behl, Advocate
for the petitioner.
Mr. D.S. Mann, A.A.G., Punjab
for the respondent-State.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
This is a petition under Section 482 of the Cr.P.C for quashing of FIR No.40 dated 28.05.2010 registered under Section 14(A) of the Foreigners Act, 1946 and Section 5 of the Registration of Foreigners Act, 1939 and Section 3(2)(A) of the Passport (Entry into India) Act, 1920 registered at Police Station Nangal, District Roop Nagar, Punjab and all proceedings arising therefrom against the petitioner herein.
The petitioner-Ms. Olga Timoshik is a professional qualified photo journalist. She is a Russian National and has been very often visiting India. In the year 2010, she visited Jaipur, Rajasthan for the purpose of Crl. Misc. No.M-34841 of 2011 2 collection of data relating for the purpose of exhibition "India Siberia 2010"
which was supposed to be held up in December 2010 in Krasnoyarsk, Russia.
The background of case of the prosecution is evident from the FIR. The same reads as under :-
" Officer Incharge Police Station. Today, Jai Hind along with Man SI/SHO, ASI Pawan Kumar I/C PP Naya Nangal, HC Kishore Chand, HC Raghuvir Singh 1161, ct. Vasadev 734 chiefs were going from Bhibor Sahib to village Swamipur Bagh. At around 12.15 p.m., police along with team reached nearby Kali Mata Mandir, which is border line of the village Bhibor Sahib. A foreigner in the monk appearance having age of about 40-45 was coming who has been stopped by Man SI/SHO. He told his name Thomas Kuhn s/o Julius Kuhn, resident of Barlach, Street 12, 21073, Hamburg, Germany and he was not able to provide any documents related to passport or visa for coming and staying in India and coming or living in India without passport or Visa is a crime u/s 14(a) of the Foreigners Act, 1946 and Section 3(2)(a) of the Passport (Entry into India) Act, 1920. Therefore, aforesaid Thomas Kuhn s/o Julius Kuhn has been taken to police station by ct. Vasadev 734. Case should be filed and provided with case number. Special reports should be issued. Control room should be informed. Man SI/SHO along with staff should investigate."
It is further alleged that during the course of interrogation on 30.05.2010, the said Mr. Thomas Kuhn stated that he had come to India in 2004 and after 3 months, he left India and during the said period, he met the petitioner-Ms. Olga Timoshik in a train and thereafter they visited one place to another. It is further the case of the prosecution that in the year 2006, Thomas Kuhn again visited India and during this time also he remained in contact with accused/petitioner over email and finally the Crl. Misc. No.M-34841 of 2011 3 accused/petitioner met the accused Thomas Kuhn at Buldhana, Maharastra on 07.07.2007 and in course of their conversation, the accused/petitioner on request of Thomas Kuhn took the passport of accused Thomas Kuhn with the purpose to get his visa extended.
Accordingly, a supplementary charge sheet was filed by the petitioner on 12.08.2010 and the charges that were framed against the petitioner and Thomas Kuhn were as under :-
" That on 28.05.2010, in the area of Nangal, the accused Thomas Kuhn being a foreign national and belongs to Germany Country, was found wandering without passport and thereby violated the provisions of Passport (entry into India) Act, 1920 and thus, the accused Thomas Kuhn thereby committed an offence punishable under Section 3(3) of the Passport (Entry into India) Act, 1920 and within the cognizance of this Court.
Secondly, on 28.05.2010, the accused Thomas Kuhn in connivance with co-accused Olga Timoshik entered in the area of Nangal (Punjab State, India) without having any viza issued by authorities concerned and thereby, the accused Thomas Kuhn committed an offence punishable under Section 14(a) of the Foreigners' Act, 1946, whereas, the accused Olga Timoshik committed an offence punishable under Section 14(c) of the Foreigners Act, 1946 and within the cognizance of this Court.
Lastly, on 28.05.2010, the accused Thomas Kuhn, in connivance with his co-accused Olga Timoshik, did not report to the prescribed authority regarding his arrival at Nangal (Punjab State, India) as was required under Section 3 of the Registration of Foreigners Act, 1939 and thereby the accused Thomas Kuhn committed an offence under Section 5 of the said Act, whereas, the accused Olga Timoshik committed an offence punishable under Section 5 of the said Act read with Section 120-B IPC and within the cognizance of Crl. Misc. No.M-34841 of 2011 4 this Court."
However, Thomas Kuhn appeared and pleaded guilty. His confessional statement reads thus :-
" I confess my guilt in the aforesaid case. On 28.05.2010 in the area of Nangal, I was found wandering without having possession of any passport and I was overstaying in India, without having any viza and that I also did not report to the prescribed authority regarding my arrival at Nangal (in Punjab State, India). My passport was taken by Olga Timoshik in July 2007 for extension of viza but she did not return it to me. I am making this statement with my free will and consent and without any threat, force or promise. I am first offender. I will not repeat such an offence in future. So, lenient view may be taken."
Accordingly, on the basis of the said confessional statement, Thomas Kuhn was convicted and sentenced under Section 3(3) of Passport (Entry into India) Act, 1920 to undergo RI for one year, with no order as to fine; under Section 14(a) of Foreigners Act, 1946 to undergo RI for one year, with no order as to fine and under Section 5 of the Registration of Foreigners Act, 1939 to undergo RI for one year, with no order as to fine. All the sentences were ordered to run concurrently.
Since, the petitioner-Olga Timoshik did not plead guilty, the prosecution was initiated against her.
While praying for quashing of the said FIR, learned counsel for the petitioner submitted that the petitioner has not committed any offence under Section 14(c) of the Foreigners Act, 1946. The allegations, itself, are not sufficient to invite the said offence. There are numerous other irregularities committed against the petitioner which are reflected in the letters of complaint from the Embassy of Russian Federation to the Ministry of External Affairs of India. Further, the Courts at Ropar had no jurisdiction to try the case as the petitioner had committed no offence at Ropar. She Crl. Misc. No.M-34841 of 2011 5 had at no point of time visited Punjab or entered Punjab. Further, the charge sheet clearly shows that the offence petitioner has allegedly abetted had been committed long before petitioner had met the offender. Thus, the petitioner cannot be charge sheeted for the said offence.
It was further stated that after July, 2007, there was no communication with the main accused-Thomas Kuhn, thus, the question of her abetting does not arise.
Further, it is stated that she had entered the name of her husband Thomas Timoshik during her registration at Jaipur and the said name has nothing to do with Thomas Kuhn. Thus, the attempt has been made to connect these two entirely different people just because they have same first name.
It was further stated by learned counsel for the petitioner that the evidences in challan prove that the petitioner was doing everything she could so that Thomas Kuhn would not be overstaying his visa and this can be seen from that she tried her best to contact him many times and after getting no response from him, she had sent his documents with his friend to him and according to the records Thomas Kuhn used those documents to leave India and travel to Nepal. The only witness whose statement was used by police to allege that the petitioner has instigated the accused Thomas Kuhn to commit offence under Section 14(A) of the Foreigner's Act, is Mr. Umesh Bolanath Joshi. Umesh Joshi states that he came to know Thomas Kuhn in March 2010 and his statement relates what Thomas Kuhn told him about the events which took place in 2007, - three years before Umesh Joshi himself met Thomas Kuhn. In this way, he admits that he didn't witness that event himself and only referring to the words of main accused Thomas Kuhn. As per challan records, Umesh Joshi is the one who brought Thomas Kuhn to Nangal and let him stay in his house without registering him as a tenant which was a serious violation of the law. Crl. Misc. No.M-34841 of 2011 6 According to the Foreigners (Report to the police) Order, 1971, made under the Foreigners Act, 1946, every householder or other person shall report to the officer in charge of the nearest police station the arrival or presence in his household or any other premises occupied by him or under his control of any foreigner, if he knows or has reasons to believe that he is a foreigner. In his recorded statement, he admits the fact that he personally brought Thomas Kuhn to Nangal in his own car and let him live in his house knowing that he had no passport and visa. He also admits that it was he who encouraged Thomas Kuhn to come to Nangal. Hence he is clearly guilty of the exact same offence of Section 14(C) of the Foreigner's Act petitioner is falsely charged with.
Learned counsel for the respondent-State, on the other hand, submitted that somebody had travelled on the passport of Thomas Kuhn to Nepal. Secondly, the petitioner had been showing her husband's name as Thomas Timoshik. It was further stated that the charge sheet stands framed and therefore, the petitioner should be sent for trial.
Reply has been filed by the State. Interestingly, none of the detailed averments made by the petitioner are denied or rebutted.
Heard.
The petitioner has been charged with offence under Section 14 (C) of the Foreigner's Act, 1946. The relevant part of the said section reads as under :-
"14C. Penalty for abetment.-Whoever abets any offence punishable under Section 14 or 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.
Explanation. - For the purposes of this section -
(i) an act or offence is said to be committed in consequence of the abetment, when it is committed in consequence of the instigation, or in Crl. Misc. No.M-34841 of 2011 7 pursuance of the conspiracy, or with the aid which constitutes the offence;"
Thus, it is evident that in order to attract the said offence, the accused must (a) instigate (b) enter into conspiracy (c) aid in committing the offence.
The basis of the allegation is the statement of Thomas Kuhn which reads ;
" My passport was taken by Olga Timoshik in July 2007 for extension of viza. But, she did not return it to me."
Admittedly, the visa of Thomas Kuhn expired on 18.04.2007. In his recorded confession signed by him before the Magistrate, he specifically stated that "my passport was taken by Olga Timoshik in July 2007 for extension of visa." Thus, he committed the offence of overstaying long before he gave his passport to the petitioner or heard anything from her in regard to his passport. It is, therefore, evident that he went on committing the same offence for three more years after meeting the petitioner on 07.07.2007 without even trying to legalize his stay. The petitioner, in fact, tried to help him to extend his visa so that he does not overstay. Even if the allegation is accepted as true that she took the passport to get the visa extended, it is not understood as to why Thomas Kuhn did not make any effort to get back his passport from her and make enquiry whether the visa has been extended or not. The very fact that the petitioner was helping the accused-Thomas Kuhn to extend his visa speaks for itself that her intentions were only to help him to follow the law, not to violate it. In the charge-sheet, Intelligence Bureau record of the last visit of offender Thomas Kuhn who was charged for visa overstay clearly show that visa issued to Thomas Kuhn by Indian Government had expired on 18.04.2007-three months before he met the petitioner on 07.07.2007 as chargesheet clearly show. It means, he was intentionally overstaying his Crl. Misc. No.M-34841 of 2011 8 visa for three months while he had his passport with him. There is no allegation that the petitioner instigated Thomas Kuhn to overstay or conspired or aided him to overstay. If at all, she tried to get the viza extended for him which already stood expired. None of the conditions as specified in Section 14(c)(i) of the Act are applicable to the petitioner.
Thus, the allegations even if, are taken at their face value, do not make out an offence under Section 14(c) of the Act as there is total absence of allegation constituting the offence. This offence is not attracted in the facts of this case and the charge under this Section must fail.
The second charge framed against the petitioner is under Section 5 of the Registration of Foreigners Act, 1939 read with Section 120-B IPC. The main offence has been committed by Thomas Kuhn, who did not report to the prescribed authority regarding his arrival at Nangal (Punjab State, India) as required under Section 3 of the Registration of Foreigners Act, 1939. Accordingly, Thomas Kuhn was charged for the said Office under Section 3 of the Act and the penalty under Section 5 of the said Act was imposed upon him. The present petitioner has been enroped for the said offence read with Section 120-B of the IPC.
In order to adjudicate as to whether the petitioner is liable for the said offence, it would be necessary to reproduce the said Section, which reads thus ;
"3. Power to make Rules : (1) The Central Government may, after previous publication, by notification in the Official Gazette, make rules with respect to foreigners for any or all of the following purposes, that is to say :-
(b) For requiring any foreigner moving from one place to another place in India to report, on arrival at such other place his presence to a prescribed authority within such time and in such manner and with such particulars as may be prescribed;"Crl. Misc. No.M-34841 of 2011 9
Section 5 of the said Act deals with penalties for committing the said offence and reads thus ;
"5. Penalties : 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."
Section 120-B of the IPC reads thus ;
"120-B. Punishment of criminal conspiracy.-
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
There is no allegation either in the FIR that the present petitioner, at any stage, told the main accused Thomas Kuhn to go to Nangal or not to report about his presence at Nangal. In fact, it is an admitted position that the present petitioner had never visited Punjab leave alone Nangal. It is not understood as to on what basis the petitioner has been enroped for an offence committed by Thomas Kuhn with the help of Section 120-B of the IPC. There is not even whisper in the allegations that the present petitioner has connived with Thomas Kuhn or that he did not inform the authorities with respect to his stay at Nangal at the behest of or on account of conspiracy having been entered by Thomas Kuhn with Olga Crl. Misc. No.M-34841 of 2011 10 Timoshik. Thus, to enrope the present petitioner for an offence committed by Thomas Kuhn under Section 3 of the said Act with the help of Section 120-B of the IPC is totally misconceived. No penalty can be imposed under Section 5 of the said Act against the present petitioner for an offence under Section 3 of the said Act committed by Thomas Kuhn as there was no conspiracy or connivance by Thomas Kuhn with Olga Timoshik. The said charge is absurd and therefore being baseless, must fail.
The argument of learned counsel for the respondent-State that somebody had travelled on the passport of Thomas Kuhn to Nepal is meaningless. The prosecution has not been able to connect any evidence as to who travelled on the passport i.e whether it was someone else or Thomas Kuhn himself. In any case, no such charge has been framed against the petitioner.
The second argument of learned counsel for the respondent- State that the petitioner had been showing her husband's name as Thomas Timoshik, is also of no consequence as the petitioner has not been charged for misrepresenting herself.
Hon'ble the Supreme Court in the case of Madhavrao Jiwajirao Scindia and others vs. Sambhajirao Chandrojirao Angre and others reported as 1988(1) SCC 692 while deliberating on the powers under Section 482 of the Cr.P.C held in para 7 as under ;
"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the Crl. Misc. No.M-34841 of 2011 11 opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
Hon'ble the Apex Court in the case of Roy V.D. vs. State of Kerala reported as 2000(8) SCC 590, while quashing the proceedings initiated under the Narcotic Drugs and Psychotropic Substances Act, 1985 on the ground that the provisions of said Act were violated, held in para 18 as under :-
"18. It is well settled that the power under Section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice."
Hon'ble the Supreme Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others reported as AIR 1992 SC 64, while laying down certain guidelines where the FIR can be quashed held as under :-
(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a Crl. Misc. No.M-34841 of 2011 12 case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The case, in hand, squarely falls under Nos.1, 2 and 3 of the said list i.e neither the FIR nor the evidence collected in support of the Crl. Misc. No.M-34841 of 2011 13 same discloses the commission of offence. In the instant case, neither the FIR nor the evidence collected in support of the same discloses any offence. In fact, the State has not denied any of the averments made by the petitioner in her written statement.
In the case in hand, charges have been framed in a mechanical manner without appreciating the material before it, whereas, Hon'ble the Apex Court in the matter of Satish Mehra v. Delhi Administration and others reported as 1996 SCC (Crl.) 1104, in paras 12, 13, 14 and 15 of the report observed :
" 12. An incidental question which emerges in this context is whether the Sessions Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case, and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions ? Should it be confined to hearing oral arguments alone ?
13. Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such Crl. Misc. No.M-34841 of 2011 14 audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evience to prove charge.
14. The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Code to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.
15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Court in India are under heavy pressure of workload. If the Sessions Jude is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself."
In view of the above discussion, it is apparent that no offence under Section 14(A) of the Foreigners Act, 1946 and Section 5 of the Registration of Foreigners Act, 1939 and Section 3(2)(A) of the Passport (Entry into India) Act, 1920 can be said to be made out against the present petitioner on the basis of allegations alleged nor is there any evidence. If Crl. Misc. No.M-34841 of 2011 15 the proceedings in such a case are not quashed, the illegality will be perpetuated, resulting in grave hardship to the petitioner by making her to undergo the ordeal of trial for offences which are not even made out and, therefore, are not likely to result in conviction and shall result in wasting valuable time of the Court. Thus, it is a fit case to exercise power under Section 482 of the Cr.P.C to quash the impugned proceedings.
In view of the above, the present petition is allowed and FIR No.40 dated 28.05.2010 registered under Section 14(A) of the Foreigners Act, 1946 and Section 5 of the Registration of Foreigners Act, 1939 and Section 3(2)(A) of the Passport (Entry into India) Act, 1920 registered at Police Station Nangal, District Roop Nagar, Punjab and all proceedings arising therefrom against the petitioner herein, are quashed.
(NIRMALJIT KAUR) 27.01.2012 JUDGE gurpreet