Karnataka High Court
Emeka Fabian vs State By Cyber Crime Police on 18 February, 2016
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
Crl.P. NO. 570/2016
BETWEEN:
1) EMEKA FABIAN
AGED ABOUT 36 YEARS
2) ONUOHA
AGED ABOUT 29 YEARS
BOTH R/O AT NO.75
3RD CROSS, DODDAGUBBI
BAGALURU ROAD
BENGALURU-560077
... PETITIONERS
( BY SMT. N.SARASWATHI, ADV.)
AND:
1. STATE BY CYBER CRIME POLICE
STATION (CID) BANGALORE,
REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
2. UNION OF INDIA,
DEPT (F-A) MHA
REPRESENTED BY SECRETARY
NEW DELHI.
... RESPONDENTS
(BY SRI P.M.NAWAZ, SPP FOR R1;
SRI KRISHNA S.DIXIT, ASST. SOLICITOR GENERAL
FOR R2)
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CRL.P FILED U/S.439 CR.P.C BY THE ADVOCATE
FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO ENLARGE THE
PETITIONER ON BAIL IN CRIME NO.10/15 OF CYBER
CRIME P.S., BENGALURU CITY FOR THE OFFENCES
P/U/S 420, 465, 466, 468, 474 OF IPC, SEC.66(C) AND
66(D) OF I.T. ACT AND SEC.14 OF FOREIGNERS ACT.
AND ETC.
THIS PETITION HAVING BEEN HEARD AND
RESERVED ON 11.02.2016 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
ORDER ON THE BAIL APPLICATION FILED UNDER
SECTION 439, Cr.P.C.
Petitioners are accused nos.3 and 4 in a criminal
case ion Crime No.10/15 on the file of respondent police
station, a case registered punishable for various offences,
viz., Sections 420, 465, 466, 468, 474, I.P.C., Sections
66(C) and 66(D) of Information Technology Act and
Section 14 of the Foreigners Act, 1946. After concluding
investigation, charge sheet is filed for the above said
offences.
2. The bail application filed in Crl.Misc.8271/15
before the II Additional Sessions Judge, Bengaluru,
(CCH.52) is dismissed vide order dated 12.1.2016 and
hence they have approached this court. The 1st
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petitioner is a Nigerian national born on 4.4.1979 and
his passport is valid from 7.10.2012 to 6.10.2017. He
has obtained visa from this country to be in India from
15.5.2015 to 14.11.2015. The purpose for which visa is
obtained is shown as 'business.' The 2nd petitioner is
also a Nigerian national born on 7.7.1984 and has
obtained passport valid from 8.8.2011 to 7.8.2016 and
visa was valid from 14.11.2012 to 13.5.2013.
3. On the morning of 1.7.2015, Diwakar, police
inspector of the respondent police station, along with CID
staff, was on patrol duty within the limits of his police
station. On receipt of credible information, he went along
with his staff behind Garden City College and came to
know that one person was living in the ground floor of a
house in Sai Extension belonging to Smt.Amaravathi.
Police wanted to catch hold of him. Somehow he
escaped. When the police went inside the house of
Smt.Amaravathi, they found a lady who disclosed her
name as Lophia and that of her husband as Stellasteen
Hugo. They found 8 mobiles, 3 SIM cards, one laptop,
one MTS data card, 2 note books and 2 letterheads of
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Airport Authority Customs, and passport of Stell Hugo.
She disclosed to them that they were being used by her
husband. All the articles were seized. Police came to
know that the husband of Lophia was involved in
creating false and fake documents and he used to
contact innocent people online assuring to get vehicles at
a lesser price. Police also came to know that Stellasteen
Hugo was in the habit of cheating people over mobile and
online and also used to get money to his account.
4. During the course of investigation, police have
come to know that accused nos.3 and 4 were living in the
house of Anitha Jaiprakash at Marathhalli, Roshni
Garden, Bengaluru, and they were cheating people by
using social media. Police came to know that these
people had also got lot of money from innocent persons.
5. The 2nd petitioner's visa has already expired and he
has overstayed in India. The 1st petitioner is stated to
have misused his visa in order to cheat people through
internet and social media. In spite of their best efforts,
police have not been able to apprehend accused nos.1, 2
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and 5. Therefore, they have filed charge sheet against
these petitioners.
6. Learned counsel for the petitioner has argued that
the petitioners have been in judicial custody ever since
registration of the case and that they undertake to obey
any condition which may be imposed oupon them. She
has stated that the offences are neither punishable with
death nor with imprisonment for life and they are
exclusively triable by the JMFC.
7. Since the case on hand relates to overstay of
foreign nationals in India, learned counsel for the
petitioners was directed to implead Union of India,
Ministry of Home Affairs. Accordingly Union of India is
impleaded as respondent no.2 and Mr.Krishna S.Dixit
has taken notice of the petition.
8. Heard the learned counsel for the petitioners and
learned HCGP and learned Additional Solicitor General
representing respondent no.2.
9. What is argued by Mr.Krishna Dixit is that the 2nd
petitioner has been overstaying in India though his
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passport expired in 2013 and that both the petitioners
are involved in serious offences like cheating innocent
people by creating false documents and misusing
internet and social media. He has argued that both the
petitioners, being foreign nationals, have misused the
visa issued by our country and have violated the
provisions of the Foreigners Act, 1946, Foreigners Order,
1948, Passports Act, 1967 and other allied Acts and
Rules. It is argued that these petitioners have not at all
intimated their place of residence either to the police of
Foreign Regional Registration Officer (FRRO, for short),
and thus they have violated the provisions of the
Registration of Foreigners Rules, 1992.
10. Learned HCGP has opposed bail on the ground
that though the offences alleged are not punishable with
death or with imprisonment for life, the petitioners herein
are not entitled to bail, and that if bail is granted, it
would be as good as allowing them to stay in India
beyond the visa period which would amount to legalizing
their illegal stay. There is a lot of force in the
submission.
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11. Police have collected sufficient material in regard
to the involvement of these petitioners in the online fraud
by misusing internet and social media and having
collected huge money. Learned HCGP has argued that
charge sheet is already filed and the petitioners can face
trial before the competent court and that the prosecutor
would assist the court in conducting trial.
12. Though the offences alleged are not punishable
with death or with imprisonment for life, the offences so
committed are by foreign nationals who are overstaying
in India after lapse of their visa. The 1st petitioner has
misused the visa issued to him and has indulged ini
online fraud, that too, by creating false documents and
cheating innocent people. The 2nd petitioner has been
overstaying for more than 2 years and both of them have
violated the mandatory provisions of the Foreigners Act,
1946, Foreigners Order, 1948, Passports Act, 1967 and
other allied Acts and Rules. If they are let out on bail, it
would take many years for the court to dispose of the
matter. On the other hand, if they are in judicial
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custody, suitable directions could be given to the
concerned court to dispose of the matter at the earliest.
13. Apart from this, this court has already dealt with
the aspect of granting bail to foreign nationals
overstaying in India and those who have misused the
purpose for which visa has been issued, in
Crl.P.7904/15 (CHRISTIAN CHIDIEERE CHUKWU .v.
THE STATE OF KARNATAKA AND ANOTHER) disposed of
today. That apart, petitioners herein have used many
SIM cards to contact innocent people and the allegation
is that they have forged certain documents and misused
mobiles and online devices. Taking into consideration
all these, the petitioners are not entitled to be released on
bail at this stage.
14. In the result, the following order is passed:
ORDER
The bail application filed under Section 439, Cr.P.C. is dismissed. Notwithstanding dismissal of the petition, the concerned court to take up the matter for trial on priority basis and the prosecutor and learned counsel for the petitioners to co-operate with the court in 9 disposing of the matter at the earliest, keeping in mind the observations made in Crl.P.7904/15 stated supra.
Sd/-
JUDGE vgh*