Bangalore District Court
Sri Bareq Raad Abdulhussein Al Azzavi vs S/O. Raad Abdul Hussain on 4 October, 2018
IN THE COURT OF 55TH ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
: Present :
Smt. H.G.Nagarathna, B.A., LL.B.,
55th Addl. City Civil & Sessions Judge,
Bangalore
: Crl. Appeal No. 1908/2018 :
Date: The 4th day of October 2018
APPELLANT/ Sri Bareq Raad Abdulhussein Al Azzavi,
ACCUSED : S/o. Raad Abdul Hussain,
Age: 25 years, r/at No.237, 9th Cross,
Minahaj Nagara, Masjid Road,
JHBCS Layout, Bangalore.
(By: Sri Ekarmeshaiahan, Adv.)
- V/s -
RESPONDENT/ The State of Karnataka by:
COMPLAINANT : Kumaraswamy Layout Police,
Bangalore.
(Repted. by Learned Public Prosecutor)
JUDGMENT
This is a Criminal Appeal filed by Appellant/Accused against Respondent/complainant u/sec 374(3) of the Cr.P.C to set-aside the orders passed by the 44th ACMM in C.C.No.11714/2017 dt.4-9-2018 in convicting the Appellant/accused u/sec. 14 of Foreigners' Act, 1946 and sentenced the accused to undergo simple imprisonment for a period of 60 days and also he shall pay fine of Rs.5,000/- and in default of fine amount he shall undergo further simple imprisonment for 15 days and also ordered to deport the accused
-2- Crl. Appeal No. 1908/2018 to his country after serving sentence, in co-ordination with FRRO, without fail.
2. It is stated in the appeal grounds are:-
1) The Orders of the trial court in sentencing the accused for a period of 60 days is not sustainable.
2) The appellant is a student in Hill Side College of Pharmacy and Research Centre, situate at Raghuvanahalli village, Bangalore.
3) He was a Passport student, VISA has been granted from 6-12-2012 to 5-6-2016 and Passport was issued from 11-4-2011 to 9-4-2019 under Passport No.A1729567.
4) The respondent police alleged that the accused committed offence u/sec.465 and 471 of IPC and accordingly charge sheet has been filed u/sec. 14 of the Foreigners Act.
5) The main ground urged by the appellant is that the appellant is residing in India with a valid VISA and the same was extended from 6-6-2016 to 8-
9-2016 and further it was extended to 29-1-2017 to 31-1-2018, but however the police have filed the case against appellant, which is bad in law.
6) The principal of the college has stated that it is the mistake in the entry of the date of birth due to the negligence of the computer operator.
Under these grounds appellant seeks to set-aside the orders of the trial court.
3. Heard by the learned Public Prosecutor for state and also the appellant counsel.
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4. Now the following points will arise for my consideration and determination:
:POINTS:
1) Whether the interference of this court in the orders of the trial court is called for?
2) What order?
5. My findings on the above points are as under:
Point No.1 : Partly in the Affirmative,
Point No.2 : As per final order for the following:
REASONS
Point No.1:-
6. This complaint is lodged by the complainant that the appellant is a citizen of Iraq came to India on study VISA and even though VISA was expired without renewing the VISA he do not return back to his country and illegally over stayed in India and committed the offence p/u/sec. 14 of the Foreigners Act. The appellant has taken a grounds that he was force to stay in India because of a criminal case has been lodged against him for the offence u/sec. 465 and 471 of IPC that he has committed a forgery and manipulation of documents i.e., manipulating his date of birth in bonafide certificate and in date of birth certificate issued by the college authorities.
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7. The brief facts of the cause of action this case arose by lodging a complaint by Kumaraswamy Layout Police Station Inspector dt.16-9-2016 that on 9-9-2016 the Iraq country citizen Mr. Bareq Raad Abdulhussein Al Azzavi produce Foreigners original registration office certificates and on perusal of verification it found that the said person is residing in the address mentioned in the Passport within the limits of Kumaraswamy Layout Police Station and thereafter obtained the Xerox copies of the documents and thereafter he found that in Passport and Stay VISA his date of birth is mentioned as 22-5-1993 and the College Certificate, bonafide certificate stating his date of birth as 19-5-1990. Therefore, complaint has been lodged that there was a fake documents with false date of birth given in the bonafide certificate. Charge has been framed after appearance of the accused. The accused pleads not guilty. Hence prosecution examined totally five witnesses and got marked Ex.P.1 to Ex.P.6. PW1 who is the complainant stated same as his complaint contents and PW2 who has given the documents before the FRRO office has stated that he has given certificates before the concerned authorities for verification. In the cross-examination of PW1, who is the complainant has clearly admitted that the college authorities has issued an intimation to the Police Inspector stating
-5- Crl. Appeal No. 1908/2018 that the date of birth mentioned in the Birth Certificate was wrongly mentioned as 19-5-1990, instead of 24-2-1993 due to clerical mistake and it is further voluntary statement that accused has not made any attempted to rectify the said misstate. The PW1 he himself has admitted in the cross-examination that the college authority had issued a intimation to the Inspector that the date of birth of the appellant was wrongly entered in the birth certificate due to mistake of the computer operator. Therefore, under these circumstances there is no fault find in the act of the appellant that he himself has manipulated his date of birth as 19- 5-1990 instead of 24-2-1993. It is the mistake of the computer operator of the college for which the accused shall not be punished.
8. In that case therefore he was discharge from that case by the trial court. Now considering the materials available on record and also the documents produced by the prosecution it clearly discloses that the orders of the trial court is in accordance with law and fact. However, the trial court has ordered for 60 days of the imprisonment, in which already the accused has undergone simple imprisonment for a period of 1 month (30 days) as on today. It is argued by the appellant counsel is accused is having a old aged parents, who is suffering from severe illness in his country. He has to take care of his old aged parents. If he is
-6- Crl. Appeal No. 1908/2018 detained further one month imprisonment his old aged parents health will be deteriorated and may cause untold incident and may no chance to see his ailing parents in their last journey. Therefore, considering these factors as the court are not only the court of justice, but also of court of equity. Hence I answer point No.1 Partly in the Affirmative.
Point No.2:
9. Keeping in view the findings already given on point Nos.1 and 2 above, I proceed to pass the following:
ORDER This Crl. Appeal No.1908/2018 filed by appellant/accused u/sec. 374(3) of Cr.P.C is hereby partly allowed.
The Judgment and conviction order dated 4-9-2018 passed by the Trial Court, in convicting u/sec. 14 of the Foreigners Act 1946 and sentence him to undergo simple imprisonment for a period of 2 months (60 days) is modified as one month simple imprisonment (30 days only) and he shall pay fine of Rs.5,000/-, in default of fine amount he shall under go simple imprisonment for a period of 5 days.
The appellant already undergone 30 days of simple imprisonment as on today. Therefore, concerned jail authorities are hereby directed to
-7- Crl. Appeal No. 1908/2018 release the accused forthwith and accused is set-off and he is at liberty.
The concerned I.O is hereby directed to deport the appellant to his country after sentence period is over, in co-ordination with FRRO without fail.
No order is made as to costs.
Send back the LCR forthwith by keeping a copy of this judgment.
(Dictated to the Judgment writer on computer and after corrections, pronounced by me in the Open Court on this the 4th day of October 2018.) (H.G.Nagarathna) 55th Addl. City Civil & Sessions Judge, Bangalore.
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