Delhi District Court
Applied For Passport. In This Regard, I ... vs The State on 30 September, 2011
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 53/97
POLICE STATION:CHANAKAYA PURI
U/S: 419/420/468/471/511 IPC and 12 Passport Act
IN THE MATTER OF
STATE
VS.
CHANDER SEKHAR MISHRA
S/o Mr. Krishna Shanker Mishra
R/o Village Kasafalia, PO Sofiabad PS Contai District
Midhapore (West Bengal)
Present Address:D41, South Extension, New Delhi
Date of institution:09.10.2000
Date of reserving judgement/Order:29.09.2011
Date of Pronouncement of Judgement/Order:30.09.2011
BRIEF REASONS FOR SUCH DECISION OF THE CASE:
1.The present FIR was registered on the complaint of the complainant Counsellor Francesco Paolo Venier, First Secretary in the Embassy of Italy dated FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 1 of 11 17.02.97. In his complaint, he alleged that the accused Chander Shekhar Mishra applied for an Italian entry visa and on examination of his passport no. G869423 by the visa officer, it was discovered that there was a refusal stamp of a West European Embassy which the accused wanted to hide by sticking together two pages of the same. He further alleged that on inquiry they found that the accused has also applied for a German Visa in November, 1996 by presenting a different passport with a different name. On this complaint, the present FIR No. 53/97 PS Chanakaya Puri was registered against the accused for the offences u/s 419/420/468/471 & 511 IPC and 12 Passport Act.
2. After investigation's, chargesheet for the offences U/s 419/420/468/471/511 IPC and Section 12 Passport Act was filed against the accused. However, on 28.03.2008, charge for the offence U/s 12 (1) Passport Act only was settled against the accused by my Ld. Predecessor. The accused was discharged for the offences U/s 419/420/468/471/511 IPC by my Ld. Predecessor. It was held by my Ld. Predecessor that the IO has failed to produce on record any document such as visa application etc. obtained from the Embassy of Italy. The IO has produced on record visa application pertaining to Embassy of Germany only. The German Embassy has already rejected the application and as such it does not constitute any offence. Accordingly, a charge for the offence u/s 12 Passport Act was settled against the accused for having two passports in two different names in his possession to which, he pleaded not guilty and claimed trial for the said charge.
3. The prosecution in order to prove its case against the accused examined as many as 6 witnesses.
(i) The prosecution examined Inspector Surender Singh as PW 1 on 30.03.2009. He deposed on oath that on 17.02.1997, he was posted at PS Chanakaya Puri.
On that day, he alongwith SI Mahender Singh were patrolling the area. He deposed that FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 2 of 11 when while patrolling they reached at Italian Embassy at about 5 PM, the then Counsellor Mr. Francis Co. gave them a passport in name of Chander Shekhar Mishra, photocopy of another passport in the name of Sudhakar Reddy alongwith the accused present in the Court, Mr. Chander Shekhar Mishra whom he identified in the Court. He further deposed that on the basis of those documents, case was registered against the accused. He further deposed that Ex. PW 1/A was the passport placed on Judicial file and the photocopy of passport Mark Y in name of the Chander Shekhar Mishra and Sudhakar Reddy respectively were handed over by the First Secretary Francis Co. Ex. PW 1/C. He also proved the disclosure statement of accused, the personal search memo as Ex. PW 1/B both bearing his signatures at Point A. In his cross examination, he deposed that they had reached near Italian Embassy at about 5 PM. He further deposed that no public independent person joined at the time of seizure of the passport. They remained in the Italian Embassy for about half an hour. He further deposed that no incriminating document was recovered from the possession of accused by them. He further deposed that no article was recovered on the basis of statement of accused on that day in his presence. He further deposed that he did not join further investigation of this case. He further deposed that he does not remember whether statement of the complainant was recorded in his presence or not. He further deposed that he did not remember if he had made any departure entry vide DD report. He further deposed that he had made his arrival entry in PS Chanakaya Puri on that day at about 12 Night. He further deposed that he does not remember the DD No. or the entry. He denied the suggestion that no complaint was given by any official of Italian Embassy in his presence. He further denied the suggestion that the accused was called at the police station and detained there. He further denied the suggestion that he signed the recovery memo and the personal search memo at the police station at the instance of SI Mahender Singh. He further denied the suggestion that nothing had happened in his presence.
FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 3 of 11
The witness was not cross examined as the accused was PO and the witness was examined u/s 299 Cr. PC.
(ii) The prosecution examined SI Siri Pal Singh as PW 2. PW 2 deposed that on 17.02.97, he was posted at PS Chanakaya Puri as DO from 5 PM to 1 AM. On that day, he received rukka through SI Mahinder Singh and on the basis of that rukka, he registered the FIR and after registration, the copy of FIR and the original rukka was handed over to SI Mahinder Singh. He proved copy of FIR on record as Ex. PW 2/A. He identified his signatures on the same at point A. The witness was not cross examined as the accused was PO and the witness was examined u/s 299 Cr. PC.
(iii) The prosecution has examined SI Mahinder Singh as PW 3. He deposed that on 17.02.97, he was posted at PS Chanakaya Puri and on that day, he alongwith SI Surinder Singh were on patrolling duty and while patrolling reached at 5 PM at Italy Embassy, there 1st Secretary Mr. F.P. Vaniar met them and he handed over Mr. Chander Shekhar Mishra alongwith his passport no. G869423 and photostat copy of passport no. S899244 in the name of Sudhakar Reddy bearing his photographs and stated that this person had earlier applied in the name of Sudhakar Reddy at German Embassy for visa and now he has applied for Italy Visa in the name of Chander Shekhar Mishra. He further deposed that he has been identified in his Embassy by his German Embassy counterpart Mr. Blum and requested them to take action against him. He further deposed that he prepared a complaint and got the present case registered and carried out the investigation. He further deposed that after preparing the rukka Ex. PW 3/A bearing his signatures at point A, passport and copy of passport in the name of Sudhakar Reddy were taken into possession vide memo Ex. PW 1/A. He stated that the FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 4 of 11 passport in the name of Chander Shekhar on record was Ex. P1 and photocopy of the passport in the name of Sudhakar Reddy is Mark Y. He further deposed that the accused was arrested by him vide personal search memo Ex. PW 1/B and during the course of interrogation, accused Chander Shekhar Mishra made disclosure Ex. PW 1/C. Thereafter on 18.02.97, he went to Italy Embassy and 1st Secretary F.V. Vanier handed over complaint to him which is Ex. PW 3/B. He further deposed that he also recorded the statement of F.P. Vanier u/s 161 Cr. PC. Thereafter, he went to the German Embassy and original visa application in the name of Sudhakar Reddy was obtained by him from Mr. Foresh Bloom. The original application on record is Ex. PW 3/C had taken into possession vide memo Ex. PW 3/D bearing his signatures at point A. He further deposed that he also recorded the statement of Mr. Horesh Bloom. Thereafter, he obtained specimen handwriting and signatures of accused Chander Shekhar Mishra which were Ex. PW 3/E, F, G, H, I, J, K, L, M, N, O, P, Q, R bearing his signatures at point A and same had taken into possession vide memo Ex. PW 3/S. He further deposed that he recorded the statement of witnesses. The specimen signatures alongwith specimen handwriting were sent to FSL for comparison. Later on, the report alongwith the document Ex. PW 3/T was obtained by him. After completion of investigation, the challan was presented by him before the Court. He further deposed that he can identify the accused if any time he was shown to him.
The witness was not cross examined as the accused was PO and the witness was examined u/s 299 Cr. PC.
(iv) The prosecution has examined Mr. M.S. Jaswal as PW 4. He deposed that he was working as Superintendent, RPO Kolkata since July 2002. He further deposed that he reported in respect of letter, carbon copy of the same was marked X 1, received from SHO PS Chanakaya Puri regarding the verification of the passport no. G869423 dated 04.04.93 and passport no. S899244 dated 02.05.95 both issued by RPO, FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 5 of 11 Kolkata. He proved his detailed report in this regard as Ex. PW 4/A bearing his signatures at point A and A1 and his forwarding letter in this regard as Ex. PW 4/B also bearing his signatures at point A. He further deposed that he has also brought original record in respect of the abovesaid passports.
In his cross examination by Ld. Defence Counsel, he deposed that he did not contact the passport holder when the SI from police department came to make inquiries. He further deposed that he had brought the original record of passport bearing no. S899244 dated 02.05.95 but he has not brought the original record of passport bearing no. G869423 dated 04.04.90 as the said original record was not available. He admitted that when a person applies for grant of passport, verification is conducted by the police or the department. The passport in the present case was issued on the basis of an old passport. He further deposed that he did not possess the record of old passport as same was not available.
(v) The prosecution has examined Mr. Mukul Koranga, Deputy Secretary Home (Passports) as PW 5. He deposed that on 02.11.07, he was posted as Deputy Secretary Home (Passports). He further deposed that on that day Sanction u/s 15 of the Passport Act to prosecute accused Chander Shekhar was given by him after the approval of the Hon'ble Lt. Governor of NCT of Delhi. He proved the said Sanction as Ex. PW 5/A running into 2 pages and identified his signatures at point A. In his cross examination by Ld. Defence Counsel, he deposed that the copy of chargesheet, copy of passport, report of RPO, Kolkata, disclosure statement of accused, copy of FIR etc. were sent by the SHO PS Chanakaya Puri. He further deposed that the accused was not produced to make inquiry from him. He further deposed that all these papers were received by special messenger from DCP, HQs. He further deposed that these documents were received on 09.10.07. He further deposed that he himself, the dealing assistant and OSD (Home) who is a legal expert and Joint Secretary Home had FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 6 of 11 thoroughly examined the documents. The OSD Home was the first person to satisfy himself to grant Sanction U/s 15 of the PP Act. He further deposed that OSD Home had made his comment and vetting of the draft order of Sanction on 22.10.07. The dealing assistant Sh. Yogesh had typed out the order on 24.10.07. Thereafter, the file was put up for approval before the Hon'ble Lt. Governor by him on 24.10.07. He further deposed that the sanction order was not signed by the Hon'ble Lt. Governor. He deposed voluntarily that the Hon'ble Lt. Governor had signed the noting portion on 31.10.07 while giving his approval for prosecuting the accused Chander Shekhar under Passport Act. He further deposed that no specific list of documents was prepared which were received from DCP, HQs. He denied the suggestion that no proper mind was applied or that the sanction was accorded in routine course only.
(vi) The prosecution has examined HC Subhash Chand as PW 6. He deposed that on 18.02.1997, he was posted as Constable at PS Chankaya Puri. On that day, he along with SI Mahender Singh came to the Patiala House Court had taken the specimen writing and signatures of Chander Shekhar Mishra for German Visa application on four sheets same were exhibited as Ex. PW 6/A1 to Ex. PW 6/A4. He further deposed that he had signed all these sheets at Point A. In his cross examination by Ld. Counsel, he deposed that the specimen of the accused was taken in the Court while he was in police custody. He further deposed that In his presence, the IO had taken the permission of the Court in writing for obtaining the specimen signatures of the accused. He further deposed that he did not remember whether the accused was shown any paper before obtaining his specimen signatures on sheets. He denied the suggestion that the accused never gave any specimen handwriting or signatures, in his presence. He further denied the suggestion that he was deposing falsely.
FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 7 of 11 4. Thereafter, PE was closed. Matter was fixed for SA.
5. Statement of accused u/s 313 Cr. PC recorded by my Ld. Predecessor on 30.03.2010. In his SA, accused denied that he has applied for an Italian Entry visa on 05.02.1997 and submitted the passport no. G869423. Accused further denied that it was found that the said passport was bearing the refusal stamp of West Europian Embassy and to hide the same two pages of the passport were sticked. Accused further denied that he has also applied earlier for a German Visa by presenting a different passport with different name. On this complaint Ex. PW 3/B, the present case was registered vide FIR No. 53/97 and copy of FIR was exhibited as Ex. PW 2/A. He stated that it was a false case.
Accused further denied that he was handed over to the police by the First Secretary Francis Co. and he made the disclosure statement Ex. PW 1/C and his personal search memo was Ex. PW 1/B. Accused further denied that the passport no. G869423 dated 04.04.1993 and second passport no. S899244 dated 02.05.1995 both issued by RPO Kolkata were verified. Accused further denied that the detailed report in this regard was exhibited as Ex. PW 4/A. Accused further denied that as per report, the passport no. S899244 was obtained with the changed name of Sh. Sudhakar Reddy and by furnishing false information. Accused stated that he was having only one passport in his name as Chander Shekhar.
Accused further stated that he is innocent and has been falsely implicated in the present case due to suspicion and false information. He stated that he is a religious man and never acted against any provision of Law.
Accused stated that he wanted to lead DE and hence, the matter was posted for DE.
6. Accused has examined Sh. Bibhansu Mati as DW 1 who deposed that FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 8 of 11 he knew the accused Chander Shekar Mishara present in the court for the last 30 years. He is a religious man working as a social worker, Yog Acharya. Witness further stated that accused is a spiritual person popularizing Indian Yoga Philosophy and rendering selfless service to the needy person. Witness further stated that he is having clean antecedents. Witness further stated that he knew accused because both of them have same Guru.
In his cross examination by Ld. APP for State, he admitted that he has no personal Knowledge of this case. He further admitted that he is not aware about the facts of the case. He deposed voluntarily that he only wanted to depose about the character of accused. He denied the suggestion that he is deposing falsely.
7. Thereafter, DE was closed and matter was fixed for final arguments.
8. I have heard final arguments on behalf of parties and perused the record.
9. It is pertinent to mention here that the PW 2 and PW 3 namely SI Siri Pal Singh and SI Mahender Singh were examined in the matter u/s 299 Cr. PC only as the accused was already declared PO. After the appearance of the accused, however, the said two witnesses never appeared and were not examined. Their testimonies as mentioned above hence cannot be read as evidence in the present case. The prosecution in order to prove its case has examined as many as six witnesses in the present case, however, as observed above, PW 2 and PW 3 namely SI Siri Pal Singh and SI Mahender Singh were examined only under section 299 Cr. PC and no opportunity has been afforded to the accused to cross examine them. They have never appeared thereafter for their cross examination after the accused was apprehended and produced in the present case despite ample opportunities being given. The testimonies of both PW 2 and PW 3 cannot be read as evidence in the present case against the accused. In my considered opinion, to prove its FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 9 of 11 case, the most important and material witnesses for the prosecution were the original complainant Counsellor Francesco Paolo Venier, First Secretary in the Embassy of Italy and secondly Mr. Horst Blum from the German Embassy. On perusal of record, however, it is found that none of the witnesses were examined by prosecution despite various opportunities being given. It is revealed from the record that the process issued to complainant Counsellor Francesco Paolo Venier, First Secretary was received back repeatedly with reports from the Embassy that he has left the Country and Official of German Embassy Mr. Horst Blum will not appear in the Court because of their diplomatic status.
10. Process issued to complainant Counsellor Francesco Paolo Venier, First Secretary was also repeatedly sent through MEA/MHA but to no avail. In my considered view, non examination of the said two witnesses has rendered the case of the prosecution disproved. Nothing has come up on record to prove the original complaint filed by the complainant Counsellor Francesco Paolo Venier, First Secretary. The fact of handing over the passports to the IO by the complainant is also not proved. The complaint hence stands unproved. As no opportunity for the examination of IO was afforded to accused, his evidence cannot be read in evidence against accused. The prosecution however has also failed to prove that the accused had applied for visa in the Italian Embassy on his passport no. G869423 as no such visa document has been placed on record. The prosecution has also failed to prove the original passport in the name of Sudhakar Reddy. The same is also fatal to the case of the prosecution.
11. To prove the offence u/s 12 Passport Act against the accused, no witness has been examined from the German Embassy to prove the charge in this regard. No witness has been produced from the Passport Office to identify the accused as the person who had applied for passport in two names in his presence. Even PW 4 Mr. M.S. Jaswal FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 10 of 11 who was working as Superintendent, RPO Kolkata since July 2002 has only produced the report on the basis of record only. He never deposed that the accused is the same person who had applied for the passport twice. He has subsequently admitted that the original record pertaining to passport no. G869423 was not available and the passport was issued on the basis of old passport and no records pertaining to old passport was available. This witness has not been able to prove the identity of the person who had applied for passport. In this regard, I rely upon the Judgement Bhim Sain Vs The State (NCT of Delhi) 2001 (60) DRJ 489 wherein it was held that despite ample opportunities if the prosecution fails to produce the material witness, it calls for an adverse inference against the prosecution case and it can be said that if the said witness had been produced, he would have not supported the case of the prosecution. Further, it is well settled law that non production of the material witness certainly introduced infirmity in the prosecution case. The omission on part of the prosecution to examine IO is certainly serious and fatal to the case of the prosecution. In the present case, the complainant and other material witnesses have not been examined by the prosecution. Hence, I am satisfied that the prosecution has totally failed to prove its case against the accused. The accused hence stands acquitted for the offence u/s 12 Passport Act. His bail bond stands cancelled. His surety stands discharged. Endorsements be cancelled.
File be consigned to Record Room.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 30th September, 2011 ) METROPOLITAN MAGISTRATE This Judgment contains 11 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 53/97 POLICE STATION:CHANAKAYA PURI U/S: 419/420/468/471/511 IPC and 12 Passport Act 11 of 11