Allahabad High Court
Sirous Rahimizadeh And Another vs State Of U.P. on 3 July, 2024
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:107395 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13537 of 2024 Applicant :- Sirous Rahimizadeh And Another Opposite Party :- State of U.P. Counsel for Applicant :- Piyush Patel,Pradeep Kumar Counsel for Opposite Party :- G.A. with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16319 of 2024 Applicant :- Asal Malayeri And Another Opposite Party :- State of U.P. Counsel for Applicant :- Piyush Patel,Pradeep Kumar Counsel for Opposite Party :- G.A.,Sudarshan Singh with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13569 of 2024 Applicant :- Solat Karamlao Opposite Party :- State of U.P. Counsel for Applicant :- Piyush Patel,Pradeep Kumar Counsel for Opposite Party :- G.A.,Sudarshan Singh with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13544 of 2024 Applicant :- Rashid Samadidoudkanlou Opposite Party :- State of U.P. Counsel for Applicant :- Piyush Patel,Pradeep Kumar Counsel for Opposite Party :- G.A.,Sudarshan Singh Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Piyush Patel, learned counsel for the applicants in all the four bail applications and Sri Sudarshan Singh, learned counsel appearing for Central Government/Union of India.
2. Sri M.K. Upadhyay and Sri Rajeshwar Singh, learned AGA are present for the State.
3. Pursuant to the order dated 03.06.2024, learned counsel representing the Central Government has placed before the Court the documents as were required from the Ministry of External Affairs in a sealed cover. The said sealed has been opened in the open Court and the same has been perused by the Court.
4. The bail application filed under Section 439 Cr.P.C. by Sirous Rahimizadeh and Nayeb Moghol who are in jail since 30.12.2023 in Case Crime No.215 of 2023, under Sections 467, 468, 471 IPC and Section 14 of the Foreigners Act, 1946. The other applicants Asal Malayeri and Ghadam Kheyr Eghbalzadeh are also charged in Case Crime No.215 of 2023, under Sections 467, 468, 471 IPC and Section 14 of Foreigners Act, 1946. While, the applicants- Rashid Samadidoudkanlou and Solat Karamlao have been charged in Case Crime No.191 of 2023, under Sections 467, 471, 420 IPC and Section 14 of Foreigners Act, 1946.
5. The short story as unfolded from the first information report reveals that the applicants are the citizens and residents of Iran. They were granted visa on 03.01.2023 to visit India. The applicant no.1- Sirous Rahimizadeh was granted tourist visa for 30 days, while rest of the applicants were granted tourist visa for 15 days. All the applicants came to India on 13.03.2023. The visa granted by the Indian Government came to an end on 08.04.2023.
6. As per the first information report, during their stay in India, the applicants had made an application claiming their citizenship as refugees in the office of United Nation High Commission for Refugees, New Delhi. All the applicants were trying to cross the Indian territory on 29.12.2023 when they were apprehended by the Immigration Authorities at Sonauli border, District- Mahrajganj. On the presentation of their Passport and visa, it was found by the Immigration Authorities that the stamp which was affixed on the visa was not by the Immigration Office and it was forged. They were brought to the Immigration Office and thereafter, first information report was lodged.
7. Learned counsel for the applicants submits that the Immigration Officer could not by simply seeing the visa come to conclusion that the visa was not stamped by his office. He further submits that it is only a case of overstay under Section 14 of the Foreigners Act, 1946 (hereinafter called as ?Act of 1946?). He has relied upon sub-Section 3 of Section 3 of the Act, according to which, the applicants should have been released on bail after furnishing their security as it was only a case of overstay. He further submits that already an application was moved before UNHCR claiming as refugees in India which is pending consideration before the Ministry of External Affairs.
8. He has relied upon a judgment of Delhi High Court rendered in case of Michal Benson Nwaogu @ Chuna Benson vs. State. Reliance has also been placed upon a bail order of co-ordinate Bench of this Court passed in Criminal Misc. Bail Application No.23464 of 2017, decided on 05.04.2019. Similarly, a bail order passed by co-ordinate Bench of this Court in Criminal Misc. Bail Application No.50912 of 2019, decided on 05.03.2020 has also been relied upon.
9. Learned counsel for the applicants, as far as the treatment of under trial is concerned, has relied upon a judgment of Delhi High Court rendered in Writ Petition (Crl.) No.550 of 2022 (Emechere Maduabuchkwu vs. State of Delhi and Anr.), decided on 26.05.2023. Lastly, a bail order passed by Punjab and Haryana High Court in CRM-M-22276-2023 (Mohammad Rahim Ashori and others vs. State of Haryana) has also been relied upon.
10. According to learned counsel, no case under Sections 467, 468, 471 is made out and only a case of overstay under Section 14 of the Act, 1946 is made out and the applicants be released on bail. It is further contended that the applicant- Asal Malayeri is 19 years old girl and she may be released on bail.
11. Sri Sudharshan Singh, learned counsel appearing for Central Government while opposing bail applications submits that it is not a simplicitor case of overstay. Here, six Irani nationals who are before this Court had tried to forge the visa and had put a forged stamp on it which was shown to the Immigration Officers while they were trying to cross the Sonauli border. He has relied upon the material which has been placed today by Ministry of External Affairs, pursuant to the order dated 03.06.2024 which was in a sealed cover the specimen copy of original departure stamp, ICP, Sonauli and the stamp affixed on the visa of the applicants. According to him, the stamp on all the visa(s) bore the same number i.e. D030, while the number on each and every visa should have been different.
12. Sri Sudarshan, learned counsel further submits that the size of the stamp which was affixed on the visa is of bigger size than the specimen original departure stamp placed by the Immigration Authorities. According to him, the tourist visa granted to all the applicants have already come to an end in April, 2023 and the applicants overstayed here in India uptill December, 2023, and were trying to cross the Indian Territory without any valid visa.
13. I have heard respective counsel for the parties and perused the bail applications.
14. This is a case which involves six foreign Irani nationals, who were granted tourist visa by the Indian Government in the year 2023. The visa as per the first information report as well as from the statement of counsel for the applicants was valid uptill 08.04.2023. All the six Irani nationals overstayed in India and were apprehended by the Immigration Authorities while crossing the Indian Territory on 29.12.2023. The passports and the documents which were produced by the applicants before Immigration Authorities clearly reveal that the stamp which was affixed on the visa demonstrates that the number as given in the stamp was same for all the visa i.e. D030. The specimen copy of the original departure stamp of ICP, Sonauli which has been placed before the Court in a sealed cover today clearly shows that each and every stamp bears a different number. Further, the stamp of the Indian Immigration is totally different from what has been stamped on the visa of the applicants. From naked eyes, it is clear that both the seals are distinguishable.
15. Section 14 of the Act of 1946 clearly provides for penalty for contravention of provisions of the Act where any foreigner remains in any area in India for a period exceeding the period for which the visa was issued to him. Sub-Section (b) of Section 14 further clarifies, who does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder is liable to be penalised for the contravention of the Act.
16. In the instant case, forged stamp on the visas by the applicants, prima facie, establishes the fact that Sections 420, 467, 468, 471 IPC are attracted as the visa has not been stamped by the Indian Immigration, while the applicants were trying to cross the Indian Territory. Reliance placed upon the decision in case of Michal Benson (supra) is not applicable in the instant case as the said case was filed against the conviction of a foreign national.
17. Likewise, the case of Uzobude Evans E. (supra) is also distinguishable in the present case as it was only under Section 14 of the Act, 1946 that the Court proceeded to grant bail, while in the present case, it is not only a case of overstay which attracts Section 14 of the Act, but also it is a case where forged Immigration stamp was affixed on the visa of the applicants.
18. The reliance placed upon the decision in case of Mohd. Rizwan Khan (supra) is also distinguishable in the present set of facts as in that case, only the charge-sheet was submitted under Section 14 of the Act, and the other sections were deleted, however, in this case, the charge-sheet has been filed under Sections 467, 468, 471 IPC and Section 14 of the Act of 1946.
19. Learned counsel for the applicants heavily relied upon the decision of the Delhi High Court in case of Emechere Maduabuchkwu (supra) and sought a direction upon the Court below.
20. This Court finds that the direction given by Delhi High Court was under the writ jurisdiction, while this Court is only considering bail application under Section 439 Cr.P.C., and no direction can be issued while considering the bail application. Decision relied upon in case of Mohammad Rahim Ashori (supra) is also of no assistance to the applicants, as in that case the trial was proceedings slowly and the Court found that only two prosecution witnesses were examined, thus, the Court proceeded to enlarge the applicant on bail.
21. Considering the facts and circumstances of the case, I find that the stamp which has been affixed on the visa defers from the original departure stamp of ICP, Sonauli and it also bears the same number. Thus, prima facie, a case under Sections 420, 467, 468, 471 as well as Section 14 of the Foreigners Act, 1946 is made out.
22. Accordingly, all the bail applications of the applicants stand rejected.
23. The specimen copy of the original departure stamp of ICP, Sonauli and the documents placed before the Court in a sealed cover are returned back to Sri Sudarshan Singh, learned counsel appearing for the Central Government in a sealed cover.
24. It is, however, directed that the trial Court shall expeditiously proceed with the trial of the case and make every endeavour to conclude the trial, within a period of six months.
Order Date :- 3.7.2024 SK Goswami