Punjab-Haryana High Court
Kulwant Singh vs State Of Punjab And Another on 18 January, 2012
Crl. Misc. No.M-1548 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-1548 of 2011
Date of Decision: 18.01.2012
Kulwant Singh
....Petitioner
Versus
State of Punjab and another
...Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. D.S. Pheruman, Advocate
for the petitioner.
Mr. Kirat Singh Sidhu, Addl. A.G., Punjab
for the respondent-State.
Mr. S.S. Sandhu, Advocate
for respondent No.2.
*****
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.
The present petition has been filed under Section 482 of the Cr.P.C for quashing of FIR No.51 dated 27.10.2010 under Section 420 IPC registered at Police Station Airport Amritsar, District Amritsar, Punjab and all subsequent proceedings arisen out therefrom including the order framing charge dated 06.12.2010 (Annexure P-4), as well as, the charge sheet dated 06.10.2010 (Annexure P-5) with a further prayer for setting aside the order dated 06.01.2011 passed by the Additional Chief Judicial Magistrate, Amritsar, vide which, the application of the petitioner to release both the passports to him and allow him to go to UK for a period of one month was declined.
Crl. Misc. No.M-1548 of 2011 2
The facts, in short, are that the FIR was registered at the behest of one Mandeep Singh SAICP, Immigration Officer, Rajasansi Airport, Amritsar, with the following allegations :-
" On 27.10.2010 while performing my clearance of passengers of Air India Flight No.A1-188 One Pax namely Kulwant Singh S/o Tasvir Singh R/o VPO Porika PS Mukerian, District Hoshiarpur, D.O.B. 24.02.1982 Holder of Indian Passport No.H8445764 issued on 07.09.2010 from London. Old PP No.B0895305 issued on 22.10.1999 from RPO, Jalandhar approached to my counter for immigration clearance. On scrutiny of his travel documents, it was found that there was no departure stamp on his old Indian Passport. On questioning the pax, he revealed that he had gone to Moscow from Delhi Airport in the year 2003 on someone else's passport with the help of one agent whose identity could not be ascertained. Then he managed to sneak into London illegally. Hence, action may be taken as the rule of law."
The challan was filed and the charges have been framed only under Section 420 of the IPC by holding as under :-
" That on 27.10.2010, in the area of ICP Rajasansi Airport, Amritsar, you cheated the Immigration Authorities by dishonestly inducing them to clear your immigration on the basis of your Passport No.II8445764 issued on 7.9.2010 from London (old PP No.B0895305 issued on 22.10.1999 from Jalandhar) which was not any departure stamp on your old Indian Passport and on questioning, it was disclosed that you had gone to Moscow from Delhi Airport in the year 2003 on someone else' passport with the help of one agent and thereby you committed an offence punishable under Section 420 and within my cognizance."
Meanwhile, the petitioner filed an application to the Additional Chief Judicial Magistrate, Amritsar that once leave was granted for Crl. Misc. No.M-1548 of 2011 3 indefinite period for the stay of the petitioner in UK and he was required to report back to UK within three months from the date of departure from UK and he cannot stay beyond the said period of 90 days, thus, it was required that the petitioner be allowed to go back to UK to mark his entry in UK so that the permanent citizenship be granted to the petitioner there. However, the trial Court refused to accept the application even though the petitioner has been released on bail.
Learned counsel for the petitioner while praying for quashing of the impugned order submitted that no offence under Section 420 IPC is made out. If at all, the offence was under Section 3 of the Passports Act, 1967 but for that the permission of Central Government is required which has not been done in the present case. Further, in view of the Special Act, charges cannot be framed under the IPC as per Section 5 of the Cr.P.C. Moreover, the offence is of the year 2003 but the FIR was registered as late as in the year 2010. As such, the limitation to take the cognizance has also expired. Lastly, the FIR could not have been registered at Police Station Amritsar as the offence was admittedly committed at Delhi Air Port. Thus, even the Courts at Amritsar have no jurisdiction to hold the trial.
The only argument raised by learned counsel for the respondent-State was that the petitioner had admitted his offence. Whereas, the learned counsel for respondent No.2 stated that this action of the petitioner has resulted in attracting the provisions of the Passport Act so he was handed over to the police at Police Station Rajasansi Airport along with a written complaint Annexure R-1 to further probe the matter and for subsequent action and therefore, it was the duty of the police authorities to act in accordance with law on the investigation conducted by them.
Heard.
The argument of learned counsel for the petitioner that the Crl. Misc. No.M-1548 of 2011 4 Courts at Amritsar had no jurisdiction has merit.
A perusal of FIR shows that no offence has been committed within the territorial jurisdiction of Police Station Raja Sansi and thus, neither the case can be registered at Amritsar nor the same can be investigated by the Amritsar police nor the Courts at Amritsar are competent to take the cognizance of the offence, if any. Section 177 of the Cr.P.C which relates to the jurisdiction of the Criminal Court reads as under :-
"177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed."
Thus, the Courts at Amritsar have no jurisdiction to try the alleged offence which was committed at Delhi Airport.
Secondly, the petitioner has specifically submitted in his petition that he was cheated in the year 2003 by an Agent namely Surinder Singh, resident of Maksuda, Jalandhar who had taken the amount of Rs.6,20,000/- for sending him to UK and thereafter he assured him that his all requisite documents have been prepared and he can collect the same after reaching UK. He was sent to UK where he was apprehended by the UK police. When he made a request to UK police that he was cheated by the agent, thereafter, the UK Government gave indefinite leave to the petitioner to remain in UK. However, a condition was put that he cannot leave UK more than 90 days in the year 2010. In the year 2010, he came on leave and thus he has to go back to UK within 90 days and thereafter he can return to India. Thereafter, the petitioner came to India on 27.10.2010 and when he landed at Raja Sansi Airport at Amritsar, he was held up by respondent No.2 that there was no stamp on his old Indian Passport regarding his departure from India. However, the petitioner informed to the Airport authorities that he was sent to Moscow from Delhi Crl. Misc. No.M-1548 of 2011 5 Airport in the year 2003 on somebody else's passport with the help of the agent and thereafter he managed to enter London. The respondent No.2 after questioning the petitioner got the case registered against him under Section 420 of the IPC.
It is evident from his averments in the petition that he has not hidden any fact. A perusal of the same rather shows that it was the petitioner who was cheated by one agent namely Surinder Singh. The petitioner is the victim of circumstances. Many young people from this part of the Country are cheated by such like agents who send them abroad on the basis of fraudulent documents. Whereas, these persons like the present petitioner have otherwise paid the agents through their nose for obtaining valid passports and valid vizas. The present case appears to be one such like case. It is, therefore, the agents like Surinder Singh, who should have been interrogated and proceeded for an offence under the IPC.
However, learned counsel for the respondent-State, on instructions from ASI Baj Singh stated that Surinder Singh died in the year 2007. Thus, the FIR against the present petitioner is nothing but misuse of the process of law.
Be that as it may, a bare perusal of the allegations in the FIR do not make out an offence under Section 420 of the IPC. Section 415 of the IPC defines the word Cheating, which is punishable under Section 420 IPC. The word `cheating' has been defined under Section 415 IPC as under :-
" Section 415 - Cheating Moreover, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit Crl. Misc. No.M-1548 of 2011 6 to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat."
There is no allegation that the petitioner deceived any person, fraudulently or dishonestly induced any person. In case, the petitioner had any intention to deceive, cheat or was of a criminal nature, he would have under no circumstances carried his old passport. He had an Indian Passport No.H8445764 issued on 07.09.2010 from London. Thus, there was no reason for him to show his old Passport No.B0895305 issued on 22.10.1999 from RPO, Jalandhar where it was noticed that the petitioner had gone to Moscow from Delhi Airport in the year 2003 without any departure stamp. Thus, it is evident that the petitioner had no intention to cheat anyone. Thus, no offence under Section 420 of the IPC is made out.
Thirdly, from the perusal of FIR, it is evident that the petitioner had left the Country without any valid travelling documents. Once the petitioner had left the Country without valid travelling documents, the only specific offence which can be said to have been committed is under Section 3 of the Passports Act, 1967. Section 3 of the Passports Act, 1967 reads as under :-
"3. Passport or travel document for departure from India.- No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document.
Explanation.- For the purposes of this section,-
(a) "passport" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;
(b) "travel document" includes a travel document which having been issued by or under the authority of Crl. Misc. No.M-1548 of 2011 7 the Government of a foreign country satisfies the conditions prescribed."
Thus, there was no occasion to proceed under the IPC especially when no offence under Section 420 IPC is made out. In fact, once the offence is constituted under Sections 3 and 12 of the Passports Act, 1967, no prosecution can be launched unless and until prior sanction is taken from the Central Government which is evident from Section 15 of the Passports Act, 1967. Admittedly, neither any sanction has been taken nor has the authorities proceeded under the Passports Act, 1967.
In view of the above, the FIR No.51 dated 27.10.2010 under Section 420 IPC registered at Police Station Airport Amritsar, District Amritsar, Punjab and all subsequent proceedings arisen out therefrom including the order framing charge dated 06.12.2010 (Annexure P-4), as well as, the charge sheet dated 06.10.2010 (Annexure P-5) are, hereby, quashed and the order dated 06.01.2011 passed by the Additional Chief Judicial Magistrate, Amritsar is set aside.
(NIRMALJIT KAUR) 18.01.2012 JUDGE gurpreet