Delhi District Court
Harvinder Singh @ Arvinder Singh vs State on 11 January, 2023
IN THE COURT OF SH. RAJINDER SINGH
ASJ-06 , NDD, PATIALA HOUSE COURTS, NEW DELHI
Criminal Appeal No. - 204/2022
In the matter of:
Harvinder Singh @ Arvinder Singh
S/o Sh. Himmat Singh
R/o 20-A/36 AB, Tilak Nagar,
New Delhi ........ Appellant
Versus
STATE
NCT of Delhi ........ Respondent
Date of filing of Appeal : 23.11.2022
Date of reserving Order : 23.12.2022
Date of pronouncement of Judgment : 11.01.2023
JUDGMENT
1. The present appeal is preferred against impugned judgment dated 14.11.2022 and order on sentence dated 16.11.2022 of Ld. ACMM-01, New Delhi District, Patiala House Courts, New Delhi. Vide this impugned judgment the appellant (accused) was convicted for the offences punishable under Section 474 IPC & Section 12 (1A) (a) of the Passport Act, 1967.
1.1 The accused was acquitted of the offences punishable under Section 120- B/471/467/468/419/420 R/w Section 120-B IPC and Section 12 (1) (d) of the Passport Act, 1967.
1.2 Vide order on sentence dated 16.11.2022 the appellant / accused was sentenced to undergo simple imprisonment for a period of six months and fine Rs. 2000/- for the offence punishable under Section 474 IPC, in default of payment of fine further simple imprisonment for a period of one month. The ORDER Page..... 1/12 Harvinder Singh Vs. State Criminal Appeal No. 204/2022 appellant / accused was sentenced to simple imprisonment for a period of one year and fine Rs. 10,000/- for the offence punishable under Section 12 (1A) (a) of the Passport Act, 1967, in default of fine further SI for a period of six months. Benefit of Section 428 Cr.P.C was given to the appellant / convict. All the sentences were directed to run concurrently.
1.3 The appellant / accused deposited the fine as well as the cost of prosecution.
1.4 There is nothing on record to show that the prosecution has filed any appeal against the acquittal of the accused with regard to the aforementioned Sections of IPC and the Passport Act.
1.5 In view of the above, this appeal will only decide the conviction of the appellant / accused / convict under Section 474 IPC and Section 12 (1A) (a) of the Passport Act.
1.6 The appellant is the accused in the original proceedings. For the sake of clarity and convenience, appellant shall be referred to as "the accused" as mentioned in the original proceedings.
Brief Facts:-
2. In the impugned judgment Ld. Trial Court summarized the facts of the case of follows:-
2.1 On 19.09.2013, the accused namely Aryan Oberoi along with his wife Anjali Oberoi and three children had checked in for the flight no. AI-111 (Delhi to London) and got issued the boarding passes for the flight but did not turn up to board the flight. Thereafter, on the same day at about 14:00 Hrs. the above passengers again checked in for the flight No. AI-126 from Delhi to Hyderabad as domestic passengers under boarding passes no. 56 to 60, but refused to travel ORDER Page..... 2/12 Harvinder Singh Vs. State Criminal Appeal No. 204/2022 on flight no. AI-126 and left the boarding card at the counter. After some time they were located near Row 'L'. Passenger Aryan Oberoi disclosed his original name as 'Harvinder Singh @ Arvinder Singh' and stated that they are Afghan Nationals and had made entry into the Airport on the basis of Indian Passports, Election Cards and School ID cards. Thus, on receipt of complaint, duty officer registered the FIR under Section 419/420/467/468/471/120-B IPC and 12 of the Passport Act.
3. CHARGE:-
3.1 Charge dated 27.04.2017 for the offence punishable under Section 120-B IPC, Section 471 R/w Section 467 & 468 IPC R/w Section 120-B IPC, Section 419/420 R/w Section 120-B IPC and Section 12 (1A) (a) of the Passport Act & Section 12 (1) (d) of the Passport Act was framed against the accused. As already observed above the accused was convicted for the offence punishable under Section 474 IPC (for which no charge was framed) and Section 12 (1A)
(a) of the Passport Act, 1967.
4. ARGUMENTS:-
4.1 It was submitted on behalf of the appellant that the charge for the offence punishable under Section 474 IPC was never framed against the accused. As such conviction under Section 474 IPC is not sustainable. The said forged passport was never recovered during the investigation of this case. The same was not produced in evidence during the trial. IO / PW-10 in his cross examination dated 26.03.2019 stated that he did not seize the original passport of the accused. He also stated that he did not seize the originals of the documents of which photocopy has been provided to him by the RPO office. In his cross examination dated 07.04.2018 PW-1 stated that he had not seen the boarding passes. PW-2 denied having made any statement under Section 161 ORDER Page..... 3/12 Harvinder Singh Vs. State Criminal Appeal No. 204/2022 Cr.P.C. On internal page no. 19 para no. 34 of the impugned judgment Ld. Trial Court has also observed that the said passport was never recovered.
It was further submitted that though the accused can be convicted for the offence not charged with but specific reasons have to be mentioned for such conviction. Ld. Trial Court has not mentioned any specific reasons for convicting the accused for an offence for which no charge was framed.
Ld. Counsel for the appellant / accused submitted that for similar offence FIR No. 285/2013 PS IGI Airport was registered against the wife of the appellant / accused. Ld. Trial Court has granted the benefit of probation to the wife of the appellant / accused. Copy of the said order was filed.
4.2 It was submitted by Ld. Addl. PP for the State that the accused has been convicted under Section 474 IPC in terms of Section 222 Cr.P.C. With regard to the forged voter ID card verification report Ex. PW-8/A may be seen. In response to a court query, Ld. Addl. PP for the State submitted that no witness regarding sanction under Section 15 of the Passport Act was examined or cited. The said sanction is on record. However, it was not admitted in terms of Section 294 Cr.P.C either.
4.3 Written submissions filed on behalf of the appellant / accused perused.
REASONS FOR JUDGMENT:-
5. The accused has been convicted for the offences punishable under Section 474 IPC and Section 12 (1A) (a) of the Passport Act, 1976.
5.1 The conviction of the accused under Section 474 IPC is for possession of fake voter ID card on 19.09.2013. In para no. 36 internal page no. 20 of the ORDER Page..... 4/12 Harvinder Singh Vs. State Criminal Appeal No. 204/2022 impugned judgment Ld. Trial Court observed that the accused was found in possession of voter ID card on 19.09.2013. The said voter ID Card was issued on 18.02.2012.
5.2 The accused was convicted for the offence punishable under Section 12 (1A) (a) of the Passport Act, 1976 for applying and obtaining an Indian Passport on 07.12.2012 and 30.01.2013 respectively, despite not being an Indian National.
6. The conviction of the accused for both the aforementioned provisions of law shall be scrutinized as follows:-
REGARDING CONVICTION UNDER SECTION 474 IPC 6.1 The accused was convicted under Section 474 IPC for possession of forged voter ID Card on 19.09.2013. The said voter ID Card was issued on 18.02.2012. In the impugned judgment the other details of the said forged voter ID card, for the possession of which the accused has been convicted cannot be clearly determined. In the "conclusion" para no. 37 of the impugned judgment also the details of the said voter ID card are not mentioned. In the testimony of PW-1, one voter ID card Ex. P-1 is mentioned. I have perused the trial court record therein the voter ID card Ex. P-1 is bearing no. DKY0745439. The date of issue of this voter ID card is 18.02.2012. This corresponds to the date of issue of the said forged voter ID Card as mentioned in para no. 36 internal page no. 20 of the impugned judgment. In the complaint Ex. PW-1/A at bottom of the second page it is mentioned that photo ID "Voter ID card plus School ID cards"
were enclosed with the complaint. However, the serial number of the said voter ID card is not mentioned in the complaint also. In the testimony of PW-8 the ORDER Page..... 5/12 Harvinder Singh Vs. State Criminal Appeal No. 204/2022 voter ID card No. DKY0745439 is mentioned as Ex. P-1. In view of this it becomes clear that PW-1 was mentioning about this voter ID card. It is apparent that the accused has been convicted for the possession of this voter ID card No. DKY0745439 Ex. P-1.
6.2 It is to be seen :-
Question no. 1: Whether the prosecution has been able to prove that the voter ID card Ex. P-1 was recovered from the possession of the accused ?
Question no. 2: If the answer to the above question is in the affirmative, Whether the accused could have been convicted for the possession of voter ID card Ex. P-1, in terms of Section 222 Cr. P.C. ?
In view of the report Ex. PW-8/A regarding verification of Voter ID Card Ex. P-1 it is clear that no record of this voter ID card is available in the official record. As such the voter ID card is fake / forged.
6.3 Question no. 1: Whether the prosecution has been able to prove that the voter ID card Ex. P-1 was recovered from the possession of the accused ?
It is the case of prosecution that on 19.09.2013 the accused was found in possession of forged voter ID card (forged document) Ex. P-1. For proving this fact the prosecution examined PW-1, he stated that on 19.09.2013 the voter ID card Ex. P-1 was shown by the accused. PW-2 stated that on 19.09.2013 he was posted as CSA at IGI Airpot, Terminal -III. The accused (correctly identified) ORDER Page..... 6/12 Harvinder Singh Vs. State Criminal Appeal No. 204/2022 along with their family members (total five i.e accused plus four) came for checking in. Two voter ID cards and three school ID cards of the children were produced as identity proof. In cross examination PW-2 stated that he did not keep the copy of passengers' ID cards shown by them. In his examination in chief PW-2 has not mentioned any specific voter ID card number. Nor did he say that the said forged voter ID card is already Ex. P-1.
6.4 In the impugned judgment itself (para no. 36 internal page no. 21 of the impugned judgment) it is mentioned that IO did not prepare the seizure memo for the said voter ID card. Ld. Trial Court held that the deficiencies in the investigation by themselves shall not be sufficient for acquittal if there is sufficient material on record to prove the charge against the accused beyond reasonable doubts. In this regard Ld. Trial Court relied upon the judgment "Dhanraj Singh Vs. State of Punjab (2004) 3 SCC 654. The legal preposition laid down in this judgment cannot be disputed. However, it is to be seen whether the deficiencies in the investigation are of such nature that the same can be ignored. The seizure memo of any incriminating material, recovered from the accused is prepared to maintain a record for proving that the said incriminating material was recovered from the accused on the date, in the presence of the witnesses and under the circumstances as mentioned in the prosecution case. In the present case the seizure memo of voter ID card Ex. P-1 was required to be prepared and the signatures of PW-1 & PW-2 were required to be obtained on the said seizure memo to prove the factum of recovery of the said Voter ID card Ex. P-1 from the possession of the accused. No incriminating material can be brought on the record against the accused without the basic legal requirement(s) being fulfilled. The court can ignore only cosmetic deficiencies in the investigation. The deficiencies or lacuna regarding basic procedures of investigation cannot be ignored. Preparation of seizure memo of incriminating ORDER Page..... 7/12 Harvinder Singh Vs. State Criminal Appeal No. 204/2022 material recovered from the accused is basic procedure for investigation. Such lacuna or deficiency cannot be ignored.
7. Question no. 2: If the answer to the above question is in the affirmative, Whether the accused could have been convicted for the possession of voter ID card Ex. P-1, in terms of Section 222 Cr. P.C. ?
7.1 Even if it is presumed that the voter ID card Ex. P-1 was recovered from the possession of the accused, it is to be seen whether in the absence of any specific charge regarding possession of Voter ID Card Ex. P-1 by the accused, conviction under Section 474 IPC even in terms of Section 222 Cr. P.C is sustainable.
SECTION 222 CR.P.C reads as follows:-
When offence proved included in offence charged:-
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
7.2 Section 222 Cr.P.C does not specifically define "minor offence" vis-a- vis the offence charged against the accused. Sub Section (1) of Section 222 Cr.
ORDER Page..... 8/12Harvinder Singh Vs. State Criminal Appeal No. 204/2022 P.C provides "when a person is charged with an offence consisting several particulars, a combination of some only of which constitutes a complete minor offence....". This indicates that a minor offence vis-a-vis the offence charged would be an offence which has lesser number of ingredients as compared to the offence charged with. Illustration-A appended to Section 222 Cr.P.C reads as follows:-
In this illustration-A it can be seen that the ingredients of entrustment of criminal breach of trust are present in both Sections 406 & 407 IPC. However, Section 407 IPC requires entrustment of property to the accused in a specific capacity i.e as a carrier whereas Section 406 IPC requires only entrustment of property to the accused but not in any particular capacity. This further indicates that minor offence should be such that is included within the definition of major offence (offence charged with) minus some particular ingredients. However, the accused cannot be convicted in terms of Section 222 Cr.P.C for an offence which requires the proving of ingredients different from the offence charged with.
7.3 Coming to the facts of the case it is observed that charge for the offence punishable under Section 471 R/w Section 467 & 468 and R/w Section 120-B IPC was framed against the accused for forging another voter ID card bearing no. WDC0843780 which is distinct and separate from the voter ID Card Ex. P-1 which bears the number DKY0745439. If the accused is charged with forging document-A, then even with the help of Section 222 Cr.P.C he cannot be convicted for the possession of document-B. If the accused is charged with forgery of any particular document, then the accused may be convicted for possession of the same document under Section 474 IPC but not for the possession of a separate document.ORDER Page..... 9/12
Harvinder Singh Vs. State Criminal Appeal No. 204/2022 7.4 Section 222 Cr. P.C will apply to the cases where the prosecution fails to prove all the essential ingredients of the offence(s) charged against the accused but the prosecution is able to prove some of the ingredients of the charged offence and such ingredients by themselves constitute a complete minor offence.
However, if the ingredients for the minor offence are different than the offence charged against the accused, Section 222 Cr.P.C cannot be pressed into service. In the present case the voter ID Card Ex. P-1 is a completely separate and different document than the voter ID Card mentioned in the charge.
7.5 In view of the above it is clear that the accused could not have been convicted for the possession of Ex. P-1 even with the help of Section 222 Cr.P.C
8. SECTION 12 (1A) (A) OF THE PASSPORT ACT:-
8.1 In the charge it is mentioned that on 07.12.2012 the accused despite not being an Indian Citizen applied for an Indian Passport and obtained the same on 30.01.2013. The passport no. K-9500013 is mentioned in the charge regarding offences punishable under Section 419/420 R/w Section 120-B IPC. As per the charge the offence punishable under Section 12 (1A) (a) of the Passport Act has been divided into two parts. Firstly, application for the passport by the accused and secondly, obtaining the passport.
8.2 In para no. 33 of the impugned judgment Ld. Trial Court held that the State did not lead any evidence to show that the accused used a fake Voter ID card Ex. P-1 before the RPO for issuance of passport. In para no. 28 of the impugned judgment Ld. Trial Court observed that the factum of applying for the passport by the accused has not been proved. Ld. Trial Court further held that in view of Section 106 of the Indian Evidence Act the burden is upon the accused to show that he was not in knowledge of the application for the passport. It was also observed that he is the beneficiary of the said passport.ORDER Page..... 10/12
Harvinder Singh Vs. State Criminal Appeal No. 204/2022 8.3 PW-7 produced the recorded regarding the application given by the accused for issuance of passport. Certified copies of the same are Ex. PW-7/D. It is running into 07 pages. One such page bears the signatures of the appellant / accused. Another such page contains handwritten material in Dev Nagri Script.
In his cross examination dated 26.03.2019 IO/ PW-10 admitted that he did not seize the originals of all the documents of which photocopy was provided to him by the RPO. There is no doubt that the photograph of the accused is appearing on the document Ex. PW-7/D. However, the signatures appearing on the said documents should have been sent for forensic examination and comparison with the specimen signatures of the accused, to prove that it is the accused himself who filled up the form and put his fake signatures on the application form.
8.4 For prosecuting any person for offence(s) under the Passport Act, 1967, sanction in terms of Section 15 of this Act required. In the present case, the original sanction letter dated 05.10.2015 is on record. This document is also mentioned in the list of documents of the charge-sheet. However, no witness has been examined to prove this sanction. No endorsement of this letter being exhibited in the testimony of any witness or being admitted by the accused in terms of Section 294 Cr.P.C is visible on this letter. I have perused the list of witnesses as mentioned in the charge-sheet. No witness appears to be mentioned in this list for proving the said sanction letter.
In this regard in response to a specific court query, Ld. Addl. PP for the State after perusing the judicial record submitted that no witness regarding sanction under Section 15 of the Passport Act was examined or cited. The said sanction is on record. However, it was not admitted in terms of Section 294 Cr.P.C either.
9. In view of the above, the appeal is allowed. The impugned judgment and order on sentence are set-aside.
ORDER Page..... 11/12Harvinder Singh Vs. State Criminal Appeal No. 204/2022
10. Bail bonds cancelled. Surety discharged.
11. Original documents, if any of the surety be released to the rightful claimant against proper receipt and upon due verification of identity.
12. TCR be sent back along with copy of this order.
13. File be consigned to record room after due compliance.
PRONOUNCED IN THE OPEN (RAJINDER SINGH)
COURT ON 11.01.2023 ASJ-06/NDD/PHC/NEW DELHI
ORDER Page..... 12/12
Harvinder Singh Vs. State Criminal Appeal No. 204/2022