Bangalore District Court
State By K.S. Layout Police Station vs No. : 1. Bareq Raad Abdulhussein Al ... on 4 September, 2018
IN THE COURT OF THE 44TH ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Dated: This the 4th day of SEPTEMBER 2018
:Present:
Smt. Mala N.D., B.A.L., LL.B.,
44th ACMM, Bengaluru
C.C.No.11714/2017
Complainant : State by K.S. Layout Police station
(By Sr. Asst. Public Prosecutor)
-V/s-
Accused No. : 1. Bareq Raad Abdulhussein Al Azzawi
R/at No.237, 9th Cross,
Minhaj Nagara, Masjid Road,
JHBCS Layout, Bengaluru.
2. Sheshadri Shekar,
Principal, Hillside College,
(Case against accused No.2 has
been split up)
(By Sri. M.V. Raghu, advocate )
2 C.C. No.11714/2017
JUDGMENT
This is a case registered against the accused for the offence punishable under Section 465, 468, 471 of IPC and Section 14 of the Foreigners Act, 1946.
2. The brief facts of the prosecution case are as follows:
That accused being the citizen of Iraq, came to India for Pharmacy eduction at Hillside College of Pharmacy, Bengaluru, accused inspite of knowledge of expiry period of his VISA, he neither renewed the same nor returned back to his country and thereby he has illegally overstayed in India, thereafter, in order to obtain extension of VISA, accused have obtained a bonafide certificate by mentioning his date of birth wrongly as 19/05/1990 instead of 24/02/1993, from the college authority, thereby forged his birth certificate through cheating for the purpose of obtaining VISA, used the said document as genuine one and submitted the same before FRRO. When the FRRO authorities sent the bonafide certificate for enquiry to the 3 C.C. No.11714/2017 jurisdictional police station, it is found that, accused tried to obtain bonafide certificate with the false date of birth for extension of his VISA period and thereby committed aforesaid offences. Therefore, C.W.1 Sri. Ravi Patil, has lodged complaint before the jurisdictional police. As such, this case came to be registered against accused persons.
During the course of investigation, I.O. visited the place of incident, drawn spot mahazar, recorded the statement of witnesses and after completion of investigation filed charge sheet against accused for the aforesaid offences.
3. The accused No.1 is on bail and he is represented through his counsel. Inspite of sufficient efforts, accused No.2 has not been secured before this court. Hence, case against him is split up.
4. The copies of the prosecution papers have been furnished to the accused No.1 as required under Sec.207 of Cr.P.C. The cognizance of the offences punishable U/sec. 465, 468, 471 of IPC and Section 14 of the Foreigners Act, 1946 4 C.C. No.11714/2017 has been taken as per Sec.190 of Cr.P.C.
5. The charge is framed, contents of charge have been read over and explained to the accused in the language known to him, he pleaded not guilty and claimed to be tried. Hence, the prosecution is called upon to prove its case.
6. The prosecution, in order to prove its case has examined 05 witnesses as P.W. 1 to 5 and got marked six documents at Ex.P1 to P.6.
7. After completion of prosecution side evidence, the statement of accused No.1 as required under Section 313 of Cr.P.C. has been recorded, wherein accused No.1 has denied the incriminating evidence adduced against him and he has not chosen to lead his side defense evidence. Hence, the case is posted for arguments.
8. Heard both the side and perused the material evidence on record.
9. The following points would arise for my consideration:
5 C.C. No.11714/2017
1. Whether the prosecution proves beyond reasonable doubt that, accused being the citizen of Iraq, came to India in order to pursue studies at Hillside College, Bengaluru, accused inspite of knowing the fact that, his VISA period has been expired, accused without renewing his VISA nor he did not return back to his country and thereby he has illegally overstayed in India and thereby committed an offence punishable under Section 14 of Foreigners Act, 1946 ?
2. Whether the prosecution proves beyond reasonable doubt that, accused No.1 along with split up accused No.2 being the citizen of Iraq, came to India in order to pursue studies at Hillside College, Bengaluru, for the purpose of obtaining VISA, accused has obtained false bonafide birth certificate mentioning his date of birth wrongly as 19/05/1990 instead of 24/02/1993, from the college authority and thereby accused forged the aforesaid document and committed an offence punishable under Section 465 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused forged his birth certificate by cheating for the purpose of obtaining VISA and thereby committed an offence 6 C.C. No.11714/2017 punishable under Section 468 of IPC?
4. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused forged his bonafide birth certificate by cheating for the purpose of obtaining VISA, used the said document as genuine one and submitted the same before FRRO and thereby committed an offence punishable under Section 471 of IPC?
5. What Order?
10. My findings on the above points are as follows:
Point No.1 : IN THE AFFRIMATIVE
Point No.2 : IN THE NEGATIVE
Point No.3 : IN THE NEGATIVE
Point No.4 : IN THE NEGATIVE
Point No.5 : As per final order for the following REASONS
11. Point No.1 to 4: All these points involve similar set of facts and circumstances, hence, taken up together for common discussion.
12. This is a case on the background of over stay by a citizen of Iraq, who came to India to pursue his Pharmacy 7 C.C. No.11714/2017 education in Hillside college, which is situated at Kumaraswamy Layout.
13. It is the specific case of the prosecution that, accused had VISA up to 05/06/2016 and not renewed his passport, overstayed thereafter. Admittedly, accused Bareq Raad Abdulhussein Al Azzawi came to India in the year 2012. Accused was granted VISA from 06/012/2012 till 05/06/2016 and it is there after in the month of September i.e. on 08/09/2016, (after lapse of three months three days) accused has applied for extension of his VISA period before FRRO, which was referred to jurisdictional police station for enquiry, wherein it was found that, accused had obtained bonafide certificate from his Hillside college with wrong date of birth as 19/05/1993, instead of his original date of birth i.e. 24/02/1993. As such, after the evidence of complainant, this court has framed additional charges in respect of the allegations punishable under Sections 465, 468 and 471 of IPC, as the college Principal has admitted the issuance of 8 C.C. No.11714/2017 such bonafide certificate.
14. In this connection prosecution, to establish its case, has examined C.W. 1 complainant PI, C.W. 2 a police official of K.S. Layout police station who has examined the VISA period of accused, C.W. 4 and 6 investigation officers as P.W. 1 to 4 and got marked Ex.P.1 to P.6.
15. The complainant/PI of K.S. Layout has spoken about receiving of an application filed for an extension of VISA of accused from FRRO for verification of documents, which was in turn referred to C.W. 2, Sri. Lenkappa, who has noticed the discrepancy regarding the date of birth of accused in the bonafide certificate, therefore, this complainant sought clarification from accused college. According to the complainant, Principal of accused college has admitted the wrong entry of date of birth as 19/05/1993 instead of 24/02/1993 in the bonafide certificate issued by the college, by saying that, it is a clerical mistake. Even C.W. 2 Sri. Lenkappa has also deposed corroborative evidence to 9 C.C. No.11714/2017 the evidence of complainant. The evidence of C.W. 1 and 2 is corroborated by the contents of complaint which is marked at Ex.P.1. The evidence of these two witnesses has not been shaken by the accused side in the cross-examination, except posing certain denials.
16. Since the evidence of C.W. 1 and 2/P.W.1 and 2 discloses the active participation of college authority in issuing fake bonafide certificate, the then Principal has been made as an additional accused.
17. In addition, the evidence of other witnesses are supported by the letter issued by an Asst. Foreigners Regional Registration Officer, which is marked at Ex.P.2 by revealing the date of expiry of valid stay VISA of accused as 05/06/2016. Even the copy of stay VISA of accused shows that his stay was extended till 05/06/2016. It is seen that, accused has applied for extension of VISA on 08/09/2016. As per Ex.P.6, I.O. had obtained all original documents from accused college for verification. In that original documents 10 C.C. No.11714/2017 and also in the statement given by the then principal of accused college, date of birth of accused was due to typographical error, wrongly mentioned in the bonafide certificate. Since this fact has been admitted by the Head of the Hillside Pharmacy college, it cannot be said that, accused by obtaining forged document, tried to use it as genuine before FRRO in order to extend his VISA, as such, there are no proper material evidences against accused to hold him as guilty for the offences punishable under Section 465, 468 and 471 of IPC.
18. On the contrary, the documents furnished by the FRRO as per Ex.P.5 clearly establishes that, accused has his valid stay VISA till 05/06/2016 and approached for its extension on 08/092016, that means to say when accused has failed to get his VISA extended, he was caught during verification of his documents. According to the accused, he will be having two months grace period to extend his VISA even after its expiry. Per contra, no materials are furnished 11 C.C. No.11714/2017 before this court and also accused has not chosen to adduce any defense evidence in this regard. Therefore, this argument of the learned counsel for accused cannot be taken into consideration.
19. Even the evidence of I.O.s who have registered the case against accused and also who conducted the investigation is sufficient to say that, accused has illegally overstayed in India. As such, viewed from any angle, it is satisfactorily and convincingly proved by the prosecution that, accused has overstayed illegally in India, without any valid VISA which is not a tolerable matter, as it affects the economy of this country. Therefore, accused has to be punished for the conduct as discussed above and the same is in clear violation of provision of Section 14 of Foreigners Act.
20. As already discussed above, there are no material evidence in respect of allegations alleged against accused for the offences punishable under Section 465, 468 and 471 12 C.C. No.11714/2017 of IPC. Hence, prosecution has failed to establish its case as against accused in respect of aforementioned offences with cogent, convincing and corroborative evidences. Accordingly, I answer Point No.1 in the Affirmative and Points 2 to 3 in the Negative.
21.Point No.5: In view of the above findings on the above points No.1 to 4, I proceed to pass the following:-
ORDER Acting U/s.248(1) of Cr.P.C., accused is found not guilty and acquitted of the offences punishable under Section 465, 468 and 471 of IPC.
Similarly, acting U/s.248(2) of Cr.P.C., accused is found guilty as follows:-
Accused is convicted for the offence punishable under Section 14 of the Foreigners Act, 1946.
Consequently, bail and bail bond of accused and his surety shall stands cancelled.
To hear on sentence.
(Dictated to the Stenographer through computer and after corrections made by me and then pronounced by me in the Open Court on this the 4 th day of September 2018).
(Mala N.D) XLIV Addl.C.M.M., B'lore.13 C.C. No.11714/2017
ORDERS ON SENTENCE Heard both sides regarding sentence. The learned Sr. Asst. Public Prosecutor has argued that, accused deserves for maximum sentence that is prescribed for the offences. On the other hand, the learned counsel for accused pleads for leniency on the ground that accused had visited India for education purpose, nominal fine may be imposed, so that immediately after release he will go to his country by obtaining necessary VISA. Otherwise, his prospective future would be ruined.
Having considered the fact that, accused is a young man and has come over to India for education purpose, after expiry of Visa, the accused has not extended the Visa, I am of the opinion that, it is a fit case to view the matter with some leniency.
The Section prescribes sentence of imprisonment, which may extend to five years and also fine. Accused is on bail.
Regarding imposition of sentence, the Hon'ble High Court of Karnataka in ILR 2016 KAR 1232 in Chirstian Chidieere Chukwu Vs. The State of Karnataka and another, in para No.50, observed as follows:-14 C.C. No.11714/2017
"........Apart from this, while convicting a foreign national, either on the basis of such national pleading guilty or the court finding him guilty after contest, the court will have to take into consideration the mitigating and aggravating circumstances, while imposing sentence. A positive attempt must be made by the judges of criminal courts dealing with foreign nationals by writing judgments, preferably in English and also recording evidence in English. This court expects that there should not be any flea-bite sentence and the courts can use discretion in exceptional cases to impose lesser punishment and there must be exceptional grounds to adopt such a course".
Therefore, from the above said dictum of Hon'ble High Court while sentencing the accused, the court will have to take into consideration the mitigating and aggravating circumstances. In this case, by considering the age of accused, as well as the purpose for which he had visited India and moreover during his stay he has not committed any other crime except expiry of Visa, as such, it is proper 15 C.C. No.11714/2017 to consider this case as an exceptional case to impose lesser punishment and a ground to adopt such a course.
It is to be noted here that, after sentencing the accused, he has to be deported to his country, for which this court has jurisdiction to direct the State to deport him.
In this regard, the question as to whether the concerned court dealing with the case file for violation of Section 14 of the Foreigners Act, could direct the concerned authorities to deport a foreign national who has overstayed is considered in ILR 2004 KAR 4603- El Mustafa El Fathi Vs. State of Karnataka. As per the facts of said case after conviction of the accused, the Magistrate had directed the State to take steps to deport the foreign national after expiry of the Sentence. The said direction had been questioned by filing petition under Sec 482 of Cr.P.C. While dealing with said aspect, the Hon'ble High Court held that the Magistrate is justified in giving such a direction to the State and concerned authorities to take appropriate steps to deport 16 C.C. No.11714/2017 the accused after serving the sentence. The relevant para at No.7 is extracted as follows:-
"Every country, in its law provides for restrictions on entry of foreigners into such country and rules regulating their stay in the country for the period permitted. Measures governing the foreigners are found in the Foreigners Act, 1946 and the Foreigners Order, 1948. Among other things, they provide for expulsion of foreigners, whose entry into India is unauthorized or whose permit for stay in India has expired. They also provide for the detention of such persons pending removal and ban on their re-entry after removal. A court convicting a foreigner for his illegal entry or his over stay in India has a duty to direct for requisite steps for deportation of such foreigner, unless requisite permit to stay in India is granted by the competent authority. It cannot therefore be said that the Court convicting a foreigner for an offence under Sec 14(c) of the Foreigner Act committed an illegality in directing for requisite steps for deportation of such person from India".17 C.C. No.11714/2017
Hence taking into consideration the facts and circumstances of case coupled with principles laid down in the judgments cited supra, I deem it proper to pass the following:-
ORDER Accused is sentenced for the offence under Section 14 of Foreigners Act, 1946, the accused is sentenced to undergo SI for two months (60 days) and also to pay a fine of Rs.5,000/-, in default to pay fine amount, he shall under go SI for fifteen days.
The concerned police/State are directed to deport the accused to his country after serving sentence, in co- ordination with FRRO, without fail.
Office to issue conviction warrant accordingly. Also the office to supply free copy of Orders on Sentence to accused.
(Dictated to the Stenographer through computer and after corrections made by me and then pronounced by me in the Open Court on this the 4th day of September 2018).
(Mala N.D) XLIV Addl.C.M.M., B'lore.18 C.C. No.11714/2017
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION P.W. 1: Ravi Patil P.W. 2: Lenkappa P.W. 3: Smt. P. Prema Kumari P.W. 4: Dharmendra T.N. P.W. 5: L. Rajendra
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Complaint Ex.P.1(a) : Signature of P.W. 1 Ex.P.1(b) : Signature of P.W. 4 Ex.P. 2 : Letter dated 21/09/2016 and 23/09/2016 Ex.P.2(a) : Signature of P.W. 1 Ex.P.3 : Bonafide certificate Ex.P.4 : FIR Ex.P.4(a) : Signature of P.W. 4 Ex.P.5&6 : Letters dated 14/12/2016 and 02/01/2017 Ex.P.5(a) : Signature of P.W. 5 Ex.P.6(a) : Signature of P.W. 5
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE NIL
4. LIST OF THE METERIAL OBJECTS MARKED FOR THE PROSECUTION NIL (Mala N.D) XLIV Addl.C.M.M., B'lore.19 C.C. No.11714/2017
Judgment pronounced in Open
Court vide separate:-
ORDER
Acting U/s.248(1) of Cr.P.C., accused is found not guilty and acquitted of the offences punishable under Section 465, 468 and 471 of IPC.
Similarly, acting U/s.248(2) of Cr.P.C., accused is found guilty as follows:-
Accused is convicted for the offence punishable under Section 14 of the Foreigners Act, 1946.
Consequently, bail and bail bond of accused and his surety shall stands cancelled.
To hear on sentence.
(Mala N.D) XLIV Addl.C.M.M., B'lore.20 C.C. No.11714/2017
ORDERS ON SENTENCE Heard both sides regarding sentence. The learned Sr. Asst. Public Prosecutor has argued that, accused deserves for maximum sentence that is prescribed for the offences. On the other hand, the learned counsel for accused pleads for leniency on the ground that accused had visited India for education purpose, nominal fine may be imposed, so that immediately after release he will go to his country by obtaining necessary VISA. Otherwise, his prospective future would be ruined.
Having considered the fact that, accused is a young man and has come over to India for education purpose, after expiry of Visa, the accused has not extended the Visa, I am of the opinion that, it is a fit case to view the matter with some leniency.
The Section prescribes sentence of imprisonment, which may extend to five years and also fine. Accused is on bail.
Regarding imposition of sentence, the Hon'ble High Court of Karnataka in ILR 2016 KAR 1232 in Chirstian Chidieere Chukwu Vs. The State of Karnataka and another, in para No.50, observed as follows:-21 C.C. No.11714/2017
"........Apart from this, while convicting a foreign national, either on the basis of such national pleading guilty or the court finding him guilty after contest, the court will have to take into consideration the mitigating and aggravating circumstances, while imposing sentence. A positive attempt must be made by the judges of criminal courts dealing with foreign nationals by writing judgments, preferably in English and also recording evidence in English. This court expects that there should not be any flea-bite sentence and the courts can use discretion in exceptional cases to impose lesser punishment and there must be exceptional grounds to adopt such a course".
Therefore, from the above said dictum of Hon'ble High Court while sentencing the accused, the court will have to take into consideration the mitigating and aggravating circumstances. In this case, by considering the age of accused, as well as the purpose for which he had visited India and moreover during his stay he has not committed any other crime except expiry of Visa, as such, it is proper 22 C.C. No.11714/2017 to consider this case as an exceptional case to impose lesser punishment and a ground to adopt such a course.
It is to be noted here that, after sentencing the accused, he has to be deported to his country, for which this court has jurisdiction to direct the State to deport him. In this regard, the question as to whether the concerned court dealing with the case file for violation of Section 14 of the Foreigners Act, could direct the concerned authorities to deport a foreign national who has overstayed is considered in ILR 2004 KAR 4603- El Mustafa El Fathi Vs. State of Karnataka. As per the facts of said case after conviction of the accused, the Magistrate had directed the State to take steps to deport the foreign national after expiry of the Sentence. The said direction had been questioned by filing petition under Sec 482 of Cr.P.C. While dealing with said aspect, the Hon'ble High Court held that the Magistrate is justified in giving such a direction to the State and concerned authorities to take appropriate steps to deport 23 C.C. No.11714/2017 the accused after serving the sentence. The relevant para at No.7 is extracted as follows:-
"Every country, in its law provides for restrictions on entry of foreigners into such country and rules regulating their stay in the country for the period permitted. Measures governing the foreigners are found in the Foreigners Act, 1946 and the Foreigners Order, 1948. Among other things, they provide for expulsion of foreigners, whose entry into India is unauthorized or whose permit for stay in India has expired. They also provide for the detention of such persons pending removal and ban on their re-entry after removal. A court convicting a foreigner for his illegal entry or his over stay in India has a duty to direct for requisite steps for deportation of such foreigner, unless requisite permit to stay in India is granted by the competent authority. It cannot therefore be said that the Court convicting a foreigner for an offence under Sec 14(c) of the Foreigner Act committed an illegality in directing for requisite steps for deportation of such person from India".24 C.C. No.11714/2017
Hence taking into consideration the facts and circumstances of case coupled with principles laid down in the judgments cited supra, I deem it proper to pass the following:-
ORDER Accused is sentenced for the offence under Section 14 of Foreigners Act, 1946, the accused is sentenced to undergo SI for two months (60 days) and also to pay a fine of Rs.5,000/-, in default to pay fine amount, he shall under go SI for fifteen days.
The concerned police/State are directed to deport the accused to his country after serving sentence, in co- ordination with FRRO, without fail.
Office to issue conviction warrant accordingly. Also the office to supply free copy of Orders on Sentence to accused.
(Mala N.D) XLIV Addl.C.M.M., B'lore.25 C.C. No.11714/2017