Delhi District Court
State vs Michael Nuabueze on 22 April, 2024
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE-08, SOUTH WEST DISTRICT, DWARKA COURT, NEW
DELHI
STATE VS. MICHAEL AMAECHI & ORS.
FIR NO: 252/2011
P. S Uttam Nagar
U/s 14 Foreigners Act
Crc No./7561/2019
JUDGMENT
Date of its institution : 29.07.2011
Name of the complainant : SI Pawan Kumar
Date of Commission of offence : 01.06.2011
Name of the accused : MICHAEL AMAECHI
S/o Sh. Izedumar, R/o A-45, Mahesh
Vihar, Phase-II, Uttam Nagar, Delhi
Plea of accused : Not Guilty
Case reserved for orders : 26.03.2024
Final Order : Convicted
Date of orders : 22.04.2024
Name of APP : Sh. Pramod Kumar
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Digitally signed
by ANIMESH
ANIMESH KUMAR
KUMAR Date:
2024.04.23
17:18:40 +0530
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1.Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Michael Amaechi S/o Amaechi for having committed the offence punishable u/s 14 of Foreigners Act.
2.Briefly stated, the present FIR was registered on the basis of complaint filed by Sub Inspector Pawan Kumar. On 01.06.2011, an information regarding the incident of quarrel was received at PS Uttam Nagar vide DD No. 39A. After the receipt of the information, the complainant along with other police officials of PS Uttam Nagar went to the spot I.e. A-45, Mahesh Vihar, Phase-II, Uttam Nagar and met the owner of the said property Sh. Gardev Singh. Two persons of foreign nationality were fighting with Gurdev Singh and upon seeing the police officials, they both tried to flee away. The said persons were apprehended by the complainant. They disclosed their names as Michael Amaechi and Micael Nawabueze and were of Nigerian nationality. It was also found that both of them were staying in India without having a valid passport or visa. The accused Michael Amaechi could not even produce his passport and visa.
3.After completing the formalities, the investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused persons namely Michael Amaechi and Micael Nawabueze. Thereafter, charge was 1 Digitally signed ANIMESH by ANIMESH KUMAR KUMAR Date: 2024.04.23 17:18:46 +0530 framed against the accused persons vide order dated 12.08.2011 u/s 14 Foreigners Act to which they pleaded not guilty and claimed trial.
4.During the pendency of the trial, the accused Michael Nawabueze was declared absconder by this Court vide order dated 19.04.2022. The accused Michael Amaechi was also declared absconder by the Court in the present case, however, he was apprehended by the police on 27.04.2023. Thereafter, he had pleaded guilty for the additional charge framed for the offence punishable u/s 174A IPC. Consequently, he was convicted for the offence punishable u/s 174A IPC vide order dated 22.03.2024 and was sentenced for the period of imprisonment already undergone by him along with fine of Rs. 2,000/-
5.In order to prove the guilt of accused Michael Amaechi, the prosecution has examined following witnesses:
• Sh. Guru Dev Singh, deposed as PW-1;
• HC Kishna Kumar, deposed as PW-2;
• SI Om Prakash, deposed as PW-3; and • Inspector Pawan Kumar, deposed as PW-4.
5.PW-1 is the landlord of the property where the accused persons were residing as tenants. During his examination-in-chief, he deposed that he 2 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2024.04.23 17:18:52 +0530 was the landlord of the house no. A-45, Mahesh Vihar, Om Vihar, Uttam Nagar, Delhi and he had given top floor on rent to the accused persons namely Michael Amaechi and Micael Nawabueze in the year 2010. On 01.06.2011, when he reached at the said address to take rent from the accused, they both started quarrelling with him. He correctly identified both the accused persons. Thereafter, PW-1 had made 100 number call upon which one police official Krishan came at the spot and he had taken both the accused to the police station. PW-1 further deposed that the said police official asked the accused persons to show the passport, visa etc. However, one of the accused persons could not produce the visa, passport etc. However, the other accused produced the visa/passport without the valid period. Thereafter, photocopy of PAN Card, passport and visa were seized vide seizure memo Ex. PW-1/A. Both the accused persons were arrested vide arrest memo Ex. PW-1/B and Ex. PW-1/C respectively and their personal search was also conducted vide personal search memo Ex. PW-1/D and Ex. PW-1/E respectively.
6.PW-1 was duly cross-examined by Ld. LAC for the accused persons. During the cross-examination, he stated that the accused Michael Nwabueze was his penance since last one year. He also stated that no information regarding the tenancy was given to the local police. He further 3 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date:
2024.04.23 17:18:59 +0530 stated that the accused had shown him visa and passport. The same were valid when he checked them. He did not check the documents of both the accused at the time when the police had reached at the spot. He further stated that he had stayed at the police station for around 1-1.5 hours. He did not remember as to how many papers were signed by him at the police station. He denied the suggestion that he was deposing falsely being the landlord of the accused persons in order to get the tenanted premise vacated.
7.HC Krishan Kumar was one the police officials who had reached at the spot after receiving the information about the incident of quarrelling. During the examination-in-chief, he interalia deposed that when they reached at the spot, the accused persons started running away after seeing them. They apprehended the accused persons. SI Pawan asked them to produce passport and visa. The accused Michael Nawabueze produced photocopy of visa and it was found that the same was valid till 11.11.2010. The other accused Michael Amaechi could not produce any documents i.e. passport or visa. He correctly identified both the accused persons in the Court. Thereafter, the present FIR was registered on the basis of tehrir prepared by the IO. He was duly cross-examined by Ld. LAC for the accused persons.
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ANIMESH by ANIMESH KUMAR KUMAR Date: 2024.04.23 17:19:06 +0530
8.SI Om Prakash proved on record the registration of the FIR in the present case. He deposed that on 01.06.2011, he had received a rukka by HC Krishan and entered DD No. 50A on the basis of which the present FIR Ex. PW-3/A (OSR) was registered. He was duly cross-examined by Ld. LAC for the accused persons.
9.Inspector Pawan Kumar was examined as PW-4 in the present case by the prosecution. He was the investigating officer of the present case. He deposed own similar lines as deposed by PW-2. He also stated that the intimation regarding the arrest of the accused persons was provided to the Nigerian embassy. He was duly cross-examined by Ld. LAC for the accused persons.
10.After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 22.03.2024. Thereafter, statement of accused persons was recorded u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") on 23.03.2024 wherein all the incriminating circumstances were put to him which he denied and took a defence that he was falsely implicated in the present case. He further stated that his passport was lost in the year 2011, and, thereafter, he was arrested in the present case. He chose not to lead defence evidence.
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ANIMESH by ANIMESH KUMAR KUMAR Date: 2024.04.23 17:19:14 +0530
11.Thereafter, the final arguments were heard. Ld. APP urged that all the prosecution witnesses have completely supported the case of the prosecution. The accused was found residing in India without having a valid passport and visa. The said accused could not even produce his passport/visa when he was apprehended by the police.
12.Ld. LAC for the accused, on the other hand, argued that no investigation was conducted from the officials of Bureau of Immigration. No public independent witness was examined by the prosecution. The accused had lost his passport in the year 2011 due to which he could not produce the same when he was arrested in the present case.
13.I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
14.Section 14 of the Foreigners Act interalia deals with the offence of residing in India beyond the period for which visa was issued i.e. overstaying in India or residing in India without a valid visa. It reads as under:
"14. Penalty for contravention of provisions of the Act, etc.-- Whoever--
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ANIMESH KUMAR
KUMAR Date: 2024.04.23
17:19:21 +0530
(a) remains in any area in India for a period exceeding the period for which the visa was issued to him;
(b) 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;
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of Section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting court why such penalty should not be paid by him.
Explanation.--For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (Entry into India) Act, 1920 (34 of 1920).]"
15.In order to prove the guilt of the accused in the present case, the prosecution is required to establish the following ingredients:
• The accused was a "foreigner" and not an Indian citizen; and • The accused exceeded his stay in India beyond the period for which visa was issued to him i.e. the accused was found residing in India without a valid visa.
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ANIMESH KUMAR
KUMAR Date:
2024.04.23
17:19:32 +0530
16.In order to establish the first ingredient that the accused was a foreign national, the prosecution has primarily relied upon the testimony of PW-1 and the police officials. As per the testimony of PW-1, he had admitted the accused (who was of foreign origin) as tenant in his property. As per the testimonies of the police officials, the accused was found to be of Nigerian nationality.
17.Moreover, as per the provision enshrined u/s 9 of the Foreigners Act and as held by the Hon'ble Supreme Court in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, the burden of proof, is on alleged foreigner to show that he is not a foreigner. In the instant case, the factum of foreign nationality of the accused was never disputed by him during the course of the trial. He did not claim that he was an Indian national. In his statement recorded u/s 313 Cr.P.C, the accused did not dispute the said fact.
18.Further, in order to establish the second ingredient that the accused was residing in India without a valid visa and passport, the prosecution has again relied upon the testimonies of PW-2 & PW-4. As per the testimonies of these witnesses, when the accused was apprehended, he could not produce his passport or visa. This testimony could also be corroborated 8 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2024.04.23 17:19:38 +0530 from PW-1 who had also stated that one of the accused persons could not produce his passport.
19.Moreover, the accused did not claim that he was residing in India on a valid visa and passport even in his statement u/s 313 Cr.P.C. He only stated that his passport was lost in the year 2011. It should be noted that the statement given by the accused persons u/s 313 Cr.P.C does not have any evidentiary value per se. It is a settled proposition of law that statement recorded u/s 313 Cr.PC can be taken into consideration by the court only to complete the chain of events and to corroborate the other evidences available on record.
20.In the instant case, no suggestion regarding the claim made by the accused (that his passport was lost in the year 2011) was given to any of the prosecution witnesses. He had only stated that he had lost his passport in the year 2011. However, he did not lead any evidence to support this claim. If the accused had really lost his passport the he must have given information in this regard to his embassy and also registered a police complaint. However, the accused did not state anything on these lines. He could also have examined themselves u/s 315 Cr.P.C but he did not do the same.
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ANIMESH ANIMESH KUMAR KUMAR Date: 2024.04.23 17:19:44 +0530
21.Hence, making a bald statement at the stage of SA u/s 313 Cr.P.C by the accused would be of no help to him. Reference can be taken from the decision of the Hobble Supreme Court in the case of Dehal Singh vs. State of Himachal Pradesh AIE 2010 SC 3594 wherein while discussing the scope and relevancy of the statement recorded u/s 313 Cr.P.C, the Apex Court had held interalia the following:
"Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. Appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-
examined, with reference to those statements. However, when an accused appears as witness in defence to disproof the charge, his version can be tested by his cross-examination.
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ANIMESH KUMAR
KUMAR Date: 2024.04.23
17:19:49 +0530
22.Therefore, burden to prove the claims made by the accused lied on him only. He did not examine even a single witness in support of his claim. Hence, the defence taken by the accused could not be proved.
23.Therefore, in view of the above discussions and findings, I find that prosecution has successfully proved beyond reasonable doubt that the accused was residing in India without having a passport and visa on 01.06.2011.
24.Hence, the accused Michael Amaechi s/o Amaechi stands convicted for the offence punishable u/s 14 Foreigners Act.
Digitally signed
ANIMESH by ANIMESH
Announced in the open court KUMAR
KUMAR
Date: 2024.04.23
On 22.04.2024 17:19:56 +0530
(Animesh Kumar)
MM-08, South West
Dwarka/ New Delhi
It is certified that this judgment contains 11 pages and each ANIMESH Digitally signed by ANIMESH KUMAR page bears my signatures. KUMAR Date: 2024.04.23 17:20:00 +0530 (Animesh Kumar) MM-08, South West, Dwarka/22.04.2024 11