Bangalore District Court
The State Of Karnataka Through vs Obimulla @ Obhimulla @ Bappi on 4 February, 2023
1 CC.No.19789/22
KABC030503182022
IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 4th DAY OF FEBRUARY 2023
C.C. No.19789/2022
Present: SRI. B.C.CHANDRASHEKAR
B.A., LL.B.,
XXIV ADDL. C.M.M., BENGALURU.
COMPLAINANT : The State of Karnataka through
K.G.Nagar Police Station
Rep.by Sr.APP
V/s.
Accused 1. Obimulla @ Obhimulla @ Bappi
@ Abhimulla, s/o.Akbarmulla, 32
yrs, R/at.Ramesh reddy building,
Baragarahalli main road,
Baragarahalli, Neraluru taluk,
Attibele, Bengaluru.
Permanent resident of Vishnupur
village, pedoliya Post, Kaliya taluk,
Nodayil district, Bangladesh.
2 CC.No.19789/22
2. Mahammad Nasir Shek @
Mahammad Nashir Shaikh @
Gupran, s/o.Mahammad Thosir
Shaikh, 35 yrs, R/at.Ramesh reddy
building, Baragarahalli main road,
Baragarahalli, Neraluru taluk,
Attibele, Bengaluru.
Permanent resident of Dul village,
Siddi Pasha Post, Obai Nagar taluk,
Joshar district, Bangladesh.
Rep.by Sri.CS, Advocate
DATE OF COMMENCEMENT : 25/04/2022 and prior to that
OF OFFENCE
DATE OF ARREST OF THE : Accused No.1 and 2 are in JC.
ACCUSED
OFFENCES ALLEGED : U/s.379, 485 of IPC, Sec.12(1)
(c) of Passport Act, Sec.14 of
Foreigners Act and Sec.98 of
Karnataka Police Act
DATE OF COMMENCEMENT : 24/08/2022
OF EVIDENCE
DATE OF CLOSING OF : 30/11/2022
EVIDENCE
OPINION OF THE JUDGE : Found guilty for the offence
u/Sec.12(1) (c) of Passport Act,
Sec.14 of Foreigners Act
(B.C.CHANDRASHEKAR)
XXIV A.C.M.M., BENGALURU.
3 CC.No.19789/22
: J U D G M E N T :
The PSI of K.G.Nagar Police station has filed chargesheet
against accused persons for the offence punishable u/s.379,
485 of IPC, Sec.12(1) (c) of Passport Act, Sec.14 of Foreigners
Act and Sec.98 of Karnataka Police Act.
2. The brief facts of the case of the prosecution are
that the accused persons are the permanent residents of
Bangladesh and prior to 15 years, the accused no.1 has
illegally came to India by sneaking through Calcutta, West
Bengal and prior to 4 months, the accused no.2 has also
came illegally to India by sneaking at the border through
Calcutta and were residing in Baraganahalli, Attibele,
Bengaluru. That the accused persons by violating the
Foreigners Act residing in India and used to commit theft of
two wheelers. The accused persons by committing theft of
Honda Harnet vehicle bearing NO.KA 40 EA 3862 on 25/4/22
at about 6.30 pm., within the limits of K.G.Nagar Police
Station, in service road were standing in a suspicious
manner, when CW 1, 6, 8 and 9 have enquired regarding the
vehicle, the accused persons failed to produce documents
with regard to said bike. Therefore, CW 1, 6, 8 and 9 brought
the accused persons to the Police Station. During the
4 CC.No.19789/22
voluntary statement, the accused persons confessed that they
have committed the theft of bikes and they used to change the
number plates and thereby they have committed the offence
u/s.379, 485 of IPC, Sec.12(1) (c) of Passport Act, Sec.14 of
Foreigners Act and Sec.98 of Karnataka Police Act.
3. On the basis of the complaint of the CW 1, this crime
has been registered by K.G.Nagar Police Station. During the
crime stage, the accused no.1 and 2 were arrested and
produced before the court on 26/4/22 and they were
remanded to JC. Hence, they are in JC in this case. After
investigation, Investigating officer has submitted the
chargesheet against the accused persons for the offences
u/s.379, 485 of IPC, Sec.12(1) (c) of Passport Act, Sec.14 of
Foreigners Act and Sec.98 of Karnataka Police Act. The
cognizance for the said offences are taken.
4. The accused no.1 and 2 have represented through
their counsel. The copies of the prosecution papers have
furnished to the accused persons as contemplated u/s.207 of
Cr.P.C., After being heard the arguments before charge, as
there were no grounds to discharge them, charge for the
offences u/s.379, 485 of IPC, Sec.12(1) (c) of Passport Act,
Sec.14 of Foreigners Act and Sec.98 of Karnataka Police Act
have been framed & read over, explained to the accused no.1
5 CC.No.19789/22
and 2 in the language best known to them. The accused no.1
and 2 have not pleaded guilty and claims to be tried. Hence,
the case taken up for trial.
5. In order to prove the guilt of the accused persons, the
prosecution has examined 3 witnesses as PW 1 to 3 out of 10
witnesses and got marked 26 documents as per Ex.P.1 to 26.
After prosecution evidence, the accused persons have been
examined u/s.313 of Cr.P.C., & they have denied the
prosecution evidence. The accused no.1 and 2 have not
chosen to submit the defence evidence.
6. Heard the arguments of learned APP and counsel for
accused no.1 and 2. Perused. On the basis of the above, the
following points have arises for my consideration :
1) Whether prosecution proves beyond
reasonable doubt that the accused
persons are the permanent residents
of Bangladesh and prior to 15 years,
the accused no.1 illegally came to
India by sneaking through Calcutta,
West Bengal and on 25/4/22 at 6.30
pm., in the Service road of K.G.Nagar,
they have possessed Honda Harnet
bike bearing No.KA 40 EA 3862 by
committing theft and thereby they
have committed the offence u/s.379 of
IPC ?
6 CC.No.19789/22
2) Whether prosecution proves beyond
reasonable doubt that on the aforesaid
date, time and place, the accused
persons were committing theft of two
wheelers and failed to produce
documents with regard to said vehicles
and changed their number plates and
thereby they have committed the offence
u/s.485 of IPC ?
3) Whether prosecution proves beyond
reasonable doubt that on the aforesaid
date, time and place, the accused
persons though the permanent residents
of Bangladesh and prior to 15 years, the
accused no.1 illegally came to India by
sneaking through Calcutta, West Bengal
and prior to 4 months, the accused no.2
also came illegally to India by sneaking
at the border through Calcutta and were
residing in Baraganahalli, Attibele,
Bengaluru and remained in India
illegally and thereby they have
committed the offence u/s.14 of
Foreigners Act ?
4) Whether prosecution proves beyond
reasonable doubt that on the aforesaid
date, the accused persons are though
the permanent residents of Bangladesh
fails to produce their passport or travel
card for inspection and thereby they
have committed the offence u/s.12(1) (c)
of Passport Act ?
7 CC.No.19789/22
5) Whether prosecution proves beyond
reasonable doubt that on the aforesaid
date, time and place, the accused
persons were in possession of the stolen
bikes or conveys or offers for sale of the
stolen bikes fraudulently and thereby
they have committed the offence u/s.98
of Karnataka Police Act ?
6) What order?
7. My answer to the above points is as under;
Point No.1, 2 and 5 In the Negative
Point No.3 & 4 In the Affirmative
Point No.6As per final order for the following :
REASONS
8. Point No.1, 2 and 5 : Since these points are
interlinked with each other, I have taken them together for
common discussion in order to avoid the repetition.
According to the prosecution the accused no.1 and 2 have
committed the offence u/s.379, 485 of IPC, Sec.12(1) (c) of
Passport Act, Sec.14 of Foreigners Act and Sec.98 of
Karnataka Police Act. In order to prove the guilt of the
accused persons, the prosecution has examined the
complainant as PW 1, he has deposed that on 25/4/22 at
9.00 am., he along with CW 6 to 9 were deputed to trace the
property in old cases and accused persons, accordingly, at
8 CC.No.19789/22
about 6.30 pm., when they came towards service road of
Nanjamba Agrahara , two persons were suspectly acting by
parking two wheeler bearing NO.KA 40 EA 3862 in a
suspicious manner and they were seeing towards the public
in a suspicious manner, by seeing the police, they started to
escape. Thereafter they have caught hold them and enquired
their names, they told their names as Abimulla, s/o.Akbar
Mulla, r/o.Baraganahalli, Attibele taluk, permanent residents
of Bangladesh and another one told his name as Mohammed
Nasir Sheik, s/o.Thoushik Sheik, r/o.Baraganahalli, Attibele
taluk, permanent residents of Bangladesh. He further
deposed that they did not show the passport and also
documents regarding two wheeler, hence, they brought the
accused persons to the Police Station and produced before the
SHO and gave complaint as per Ex.P.1. He has identified the
accused persons produced before the court through VC., Thus
the PW1 who lodged the complaint has deposed about
catching of the accused persons on suspect and their
production before the SHO along with the complaint. PW 1
has cross examined by the counsel for the accused persons,
but there is no suspectable things emerges from his mouth to
discard his evidence. Thus, one thing is clear that because
the accused persons were standing in a suspectable manner,
he and other police staff have caught hold and produced them
9 CC.No.19789/22
before the SHO.
9. The prosecution has examined mahazar witness as
PW3 and he has deposed that he has identified the accused
persons produced before the court through VC., he has
deposed that on 28/4/22 the police have called him to the
Police Station and shown 89 bikes and also shown the
accused persons produced before the court at Police Station
and took the photosnaps and drew up the mahazar as per
Ex.P.4. Further he has deposed that he has not taken to any
place and he does not know which are those bikes, hence, he
has partly turned hostile to the case of the prosecution and
learned Sr.APP has treated him as a hostile witness and
suggested about drawing up of the mahazar as per Ex.P.4 on
the information of the accused persons at the vacant place
near residential house of the accused persons at Bandepura
main road. But he has denied the same. Though PW 3 being
the recovery mahazar witness who was present at the time of
recovery of bikes has not completely supported the
prosecution case, one thing he has admits that the police
have shown the accused persons at the Police Station as well
as 89 bikes and drew up the mahazar as per Ex.P.4.
10. The prosecution has examined one of the Investigating
officer CW10 as PW 2, he has deposed that on 25/4/22 at
10 CC.No.19789/22
about 7.10 pm., the CW 1 got produced two persons before
him and gave report, on enquiry, he came to know that the
said persons are the permanent residents of Bangladesh and
illegally they have came to India by sneaking. Further he has
deposed that on asking the accused persons also admitted
that they have committed theft of bike which was parked near
Attibele. then he registered the crime in Cr.No.53/22, sent
FIR to the court and higher officers and also seized bike from
the possession of the accused persons under Ex.P.3 mahazar
in the presence of panchas. He further deposed that
thereafter he produced the accused persons before the court
and obtained for police custody, thereafter, the accused
persons took him and panchas to their house situated at
Badaganahalli and produced 7 bikes, he seized them under
Ex.P.4 mahazar in the presence of panchas and subjected to
PF.No.41/22. He further deposed that on 9/5/22 he sent
requisition to RTO, Shanthinagar, then he learnt that the
Cr.No.196/16 registered against accused no.1 in Nelamangala
Police Station for an offence u/s.302, 201 of IPC. On 2/5/22
received information from RTO, Shanthinagar as per Ex.P.6,
then deputed his staff to trace the RC owners of the bikes. He
further deposed that by obtaining the indemnity bond,
released the bikes to its owners, on 4/5/22 he produced the
accused persons before the court. Thereafter he wrote letter
11 CC.No.19789/22
to Asst.Director, S.I.V to know whether the accused persons
are citizens of India or Bangladesh as per Ex.P.7 and 8 and
after completion of investigation, filed the chargesheet before
the court.
11. Apart from the oral evidence, Ex.P.1 is the complaint,
Ex.P.2 is the FIR, Ex.P.3 and 4 are the seizure mahazars,
Ex.P.5 is the report, Ex.P.6 is the information, Ex.P.7 to 13
are the letters, Ex.P.14 and 15 are the voluntary statements
of the accused persons, Ex.P.16 and 17 are the letters written
to RTO, Rajajinagar, Ex.P.18 to 23 are the 6 D Extracts,
Ex.P.24 is the Reminder, Ex.P.25 is the Report, Ex.P.26 is the
Circular.
12. Since this is a chargesheet against the accused
persons for an offence u/Sec.379 and 485 of IPC, the
prosecution is required to prove that the accused persons
have committed the theft of bikes as alleged in the
chargesheet and amongst stolen bikes, the accused no.1 and
2 have changed the number plate and used the duplicate
number plates to the motor bikes bearing No.KA 04 ES 0637
and Hero pulsar bike bearing No.TN 73 2687 and another
bike bearing No.KA 02 EG 8067 and used the same. If these
ingredients are proved they will be convicted for the offences
u/s.379 and 485 of IPC.
12 CC.No.19789/22
13. PW 1 being the PSI and According to him, on that day
at 6.30 pm., when he was coming from Service road,
Nanjamba Agrahara, he found the accused persons in a
suspected manner and they tried to escape but on enquiry,
they admits that they are the citizen of Bangladesh and not
produced the documents about the two wheeler, that is the
reason he has produced the accused persons before the SHO
PW 2. As per the evidence of PW 2 he has deposed about
production of accused persons before him, on his enquriy,
they admits that they are the citizens of Bangladesh and they
committed the theft of bikes. Further according to him, he
has taken them to the Police custody and he has taken out
the accused persons to their tenanted house at Badaganahali
village and they have seized 7 bikes under the Ex.P.4 recovery
mahazar. But PW 2 has not deposed that he has seized the
said bikes on the basis of the voluntary statement of the
accused persons. The Investigating officer has deposed that
he has recorded the voluntary statements and it also marked
as Ex.P.14 and 15. But PW 2 has not at all deposed that at
the time of voluntary statement, the accused persons have
admits that they will show the stolen bikes kept in a
particular place and the accused persons themselves have
taken the Investigating officer to that place and Investigating
officer has seized the said bikes on the basis of the oral
13 CC.No.19789/22
information of the accused persons in order to draw the
presumption u/s.27 of the Indian Evidence Act. Thus, the
PW 2 has not deposed about recovery of the bikes on the
information of the accused persons u/s.27 of the Indian
Evidence Act. When the Investigating officer has not deposed
the said fact, this court is unable to draw the presumption
u/s.27 of the Indian Evidence Act that because the accused
persons are committed the theft of bikes and kept in them in
particular place and they themselves have shown the same
and Investigating officer has seized the said bikes. Under
such circumstances, the prosecution can prove the recovery
of the bikes by examining the materials seizure mahazar
witnesses who were present at the time of seizing the bikes.
14. The prosecution has examined the recovery mahazar
witness as PW 3 but according to him on 28/4/22, the
K.G.Nagar police have called him to the Police Station and
shown 89 bikes and shown the accused persons and took the
signature on mahazar. But he has not spelt that the accused
persons have given the voluntary statement by admitting to
show the stolen bikes and thereby the Investigating officer has
taken these witnesses as well as accused persons at the
vacant place of Badaganahali main road and accused persons
themselves have shown the stolen bikes. Thus, PW 3 being
14 CC.No.19789/22
the recovery mahazar witness has not supported the case of
the prosecution. The learned Sr.APP has cross examined him
and suggested about the recovery of the bikes on the
information of the accused persons as per Ex.P.4, but he has
denied the same. Since the recovery mahazar witness has
not supports, it created doubt in the mind of the court.
Except PW 3 the prosecution has not examined any other
recovery mahazar witness to establish the recovery of stolen
bikes on the information of the accused persons. Accordingly,
as discussed above, on meticulous verification of the entire
evidence placed by the prosecution absolutely there is no
materials to establish the recovery of stolen bikes either from
the possession of the accused persons or on their
information. When the recovery of the stolen bikes has not
been proved by the prosecution, question of using fake or
duplicate number plates to the bikes and used the same
u/s.485 of IPC would not arise. Thus, absolutely there is no
materials to believe that the accused persons have committed
an offence u/s.379 and 485 of IPC
15. So far as Sec.98 of the K.P.Act is concerned, the
prosecution has contended that the accused persons were in
possession or conveys or offers for sale of the stolen bikes
and fraudulently and committed the offence u/s.98 of the KP
15 CC.No.19789/22
Act. But as per the detail discussion made above, the
prosecution has failed to prove that the accused persons were
possessed the stolen bikes and they are conveys the same or
offers for sale or pawn though they are know that it is stolen
property. Hence, absolutely there are no the material evidence
to punish the accused persons u/s.98 of the K.P.Act.
Accordingly, I answered the point No.1, 2 and 5 in the
Negative.
16. Point nos.3 & 4 : So far as the offence u/s.12 (1) (c)
and 14 of the Foreigners Act are concerned, since the
prosecution has contended that accused persons have
committed an offence u/s.14 of Foreigner Act, it is just and
necessary to have a look over the said provision.
Sec.14 of Foreigners Act : Penalty for
contravention of provisions of the Act, etc. --
Whoever.--(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
16 CC.No.19789/22
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.
As per the above provision if any person remains in India
for a period exceeding the Visa issued to him or he does some
act in violation of the conditions of valid Visa or if any persons
did some act contravenes the provisions of the Foreigns act or
any order made thereunder or any direction given in
pursuance of the Act or such order for which no specific
punishment is provided under the said Act, the said person
shall be punished under the provision of sec.14 of Foreigners
Act with imprisonment for a term which may extend to 5
years and also liable to fine. Here the prosecution has
contended that without having valid Visa from the
Government of India the accused persons being the citizens of
Bangladesh, have illegally sneaked through Calcutta of West
Bengal and stayed in Bengaluru. Thereby they have
committed the offence u/s.14 of Foreigner Act.
17. On the arrest of the accused persons, the PW 1
being the PSI has deposed the said facts that they are
residents of Bangladesh, came to India and residing in
Bengaluru. PW 2 being the Investigating officer has deposed
that after production of the accused persons before him, on
17 CC.No.19789/22
his investigation, the accused persons have admits that they
are the residents of Bangladesh and illegally came to India
and also deposed that they have not produced any Visa for
their residence in India. At the time of the cross examination
the counsel for the accused persons has suggested that they
are the citizens of India and having Adhara card and the
Investigating officer has filed the false final report. Thus,
they are claiming that they are the citizen of this country and
they are not the citizens of Bangladesh. At this juncture, it is
benefit to refer the provision of Sec.9 of Foreigners Act.
Sec.9 : Burden of proof.--If in any case not
falling under section 8 any question arises
with reference to this Act or any order made
or direction given thereunder, whether any
person is or is not a foreigner or is or is not
a foreigner of a particular class or
description the onus of proving that such
person is not a foreigner or is not a
foreigner of such particular class or
description, as the case may be, shall
notwithstanding anything contained in the
Indian Evidence Act, 1872(1 of 1872), lie
upon such person.
As per the above provision, if any question arises with
reference to this Act, except u/s.8 or any order made or
direction given thereunder, the said act that whether any
person is a foreigner or not a foreigner, the onus of proving
that he is not a foreigner shall not withstanding anything
18 CC.No.19789/22
contained in the Indian Evidence Act, the burden is lies on
such person to prove his defence. Thus, when the accused
persons are claiming that they are not the foreigners and
they are Indians, the burden lies on them to prove that they
are the citizens of this country.
18. It is needless to mention that if a person born in
India by birth he became citizen of this country or if a person
residing in this country for more than statutory period, he can
get the citizenship through the concerned authority and he
became the citizen of this country. Under such circumstance,
it is the duty of the accused persons to prove whether they
are the citizens of this country by birth or they took the
citizenship by residing here for more than statutory period
that too by virtue of the confirmation order by the authority of
India. If the accused persons are citizens of India by birth,
they can prove their birth certificate and other documents
issued by the authority and establish the said facts. If they
claiming their citizenship by virtue of acquisition, they can
prove by producing the necessary order, other documents
issued by the authority of Government of India. But at the
time of examination of the accused persons u/s.313 of
Cr.P.C., they have denied all the evidence of the prosecution
as false and they submits that they have no defence
19 CC.No.19789/22
evidence. Accused no.1 submits that a false case has been
registered against him and accused no.2 submits that he has
not committed any theft. Except that, the accused persons
have not produced any materials to establish that they are
not the foreigners but they are the citizens of this country.
When there is no materials to establish their citizenship,
though the burden is lies on their shoulder to establish that
they are not the foreigners, this court is unable to accept the
contention that the accused persons are not foreigners and
committed any offence. Thus, accused persons have failed to
prove that they are not the foreigners and citizen of this
country. Accordingly in view of the evidence of PW 1 and 2,
the police official witnesses, who deposes that the accused
persons are residents of Bangladesh and as there is no proof
by the accused persons u/s.9 of the Foreigner Act, this court
is of the view that the accused persons have entered India
illegally from Bangladesh and this act contravenes the
provision of Sec.14 of the Foreigner Act. Hence, they are
found guilty for the offence u/s.14 of the Foreigners Act.
19. So far as sec.12 (1)(c) of Passport Act is concerned,
the proviso of sec.12 is reads as hereunder:
12. Offences and penalties (1) Whoever-
20 CC.No.19789/22
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or
suppresses any material information with a. view to
obtaining a passport or travel document under this
Act or without lawful authority alters or attempts to
alter or causes to alter the entries made in a
passport or travel document; or
(c) fails to produce for inspection his passport or
travel document (whether issued under this Act or
not) when called upon to do so by the prescribed
authority;
(d)....
(e)......
shall be punishable with imprisonment for a term
which may extend to (two years or with fine which
may extend to five thousand rupees) or with both.
As per the above provision, whoever fails to produce for
inspection his passport or any travel document, whether
issued under this Act or not when called upon to do so, it is
an offence under the said provision. As per the above
discussion, as per the evidence of police official witnesses,
the accused persons are the citizens of Bangladesh. On the
other hand, the accused persons have failed to prove that
they are not the foreigners. Under such circumstances,
without having a passport or travel document from the
authority, the accused persons are residing in India and when
the police have caught hold and asked to produce the
21 CC.No.19789/22
documents, they have failed to produce the permission,
document of travel. Hence, it is an offence under the
provision of Sec.12(c) of the Passport Act. Hence, this court is
of the view that because the accused persons are staying in
India without having any travel document, they have
committed the offence u/s.12(c) of the Passport Act. Hence,
without further discussion, I answer the point No.3 and 4 in
Affirmative.
20. POINT NO.6 :
For the aforesaid reason and discussion, I proceed to
pass the following:
ORDER
Acting under section 248(2) of Cr.P.C.
accused persons are hereby found guilty for the offence punishable U/s.12(1) (c) of Passport Act and Sec.14 of Foreigners Act.
Acting under section 248(1) of Cr.P.C.
accused persons are hereby Acquitted for the offence punishable U/s.379, 485 of IPC and Sec.98 of K.P.Act.
It is not a fit case to award victim
compensation as provided U/s.357(1) of
22 CC.No.19789/22
Cr.P.C.,
Call on to hear on PO Act and sentence.
(Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 4th day of February 2023) (B.C.Chandrashekar) XXIV A.C.M.M., BENGALURU TO HEAR ON PO ACT Heard the arguments of the counsel for the accused persons, the counsel for the accused persons submits that the accused persons are innocent and not involved in any other case and requested to release them on P.O.Act. Since the accused persons are came from Bangladesh without having any document of travel or Visa and committed the alleged offences, this court decline to extend the benefit of the P.O.Act to the accused persons.
TO HEAR ON SENTENCE The counsel for the accused persons submits that the accused persons are aged about 35 years and having their family members and requested to impose nominal fine.
As per the provision of sec.14 of the Foreigners Act, if any persons committed the offence under the said provision, he shall be punished with imprisonment for a term which may 23 CC.No.19789/22 extend to 5 years and also liable to fine. Similarly as per the provision of sec.12 of Passport Act, if any persons committed the offence under the said provision, he shall be punished with imprisonment for a term shall not be less than 1 year which may extended to 5 years. The accused no.1 and 2 are in JC from their arrest ie., from 26/4/22 and though they have enlarged on bail, they have not furnished the surety and complied the bail conditions. Thus they are in JC. Since the accused persons have committed the offence u/s.14 of Foreigners Act and Sec.12(1) (c) of Passport Act, by considering the facts and circumstances of the offences, this court felt it is just and necessary to sentence the accused persons for a period of 1 year for an offence u/s.14 of Foreigners Act and 1 year for an offence u/s.12(1) (c) of Passport Act.
As per the detailed discussion made above, this court is of the considered view that the accused no.1 and 2 have committed an offence u/Sec.12 (1) (c) of Passport Act and Sec.14 of Foreigners Act. At this juncture, it is significant to note here that the Hon'ble High Court of Karnataka in Babul Khan v/s.State of Karnataka case in para No.64 it is held as hereunder :
24 CC.No.19789/22....64. (D) PROCEDURE AFTER TRIAL [ACQUITTAL OR CONVICTION TILL DEPORTATION OF SUCH FOREIGN NATIONAL TO HIS COUNTRY:
After the trial, if the accused is acquitted or convicted, what is the procedure that should be followed till his nationality is decided, if it is pending or if he was convicted for the offence punishable under Section 14, 14A and 14B of the Foreigners Act for having found that he is an illegal migrant, it goes without saying that if the court convicts an accused holding that he is a foreign national and not entitled to be continued in India, the deportation process should be adhered to in order to send back the said foreign national to his country. But for serving the sentence imposed upon him he shall be kept in detention centers and not in regular jails till he is deported, after serving the sentence or ordered to be released from jail for any other reasons.
As per the dictum of Hon'ble High Court of Karnataka if the accused is convicted for u/s.14 of the Foreigners Act, is not entitled to be continued in India and the deportation process should be adhere to in order to send back the accused to their own country. But serving the sentence imposed on them they shall be kept in detention center and not in regular jails till the deportation, after serving the sentence or ordered to be released form jail for any other reasons.25 CC.No.19789/22
Further in para No.83 and 89(4) it is held as hereunder :
83. In view of the above, it can be said that whether the accused is released on bail or acquitted, or his nationality is questioned and not yet determined, it is the Competent Authorities who have to take a decision to keep him in the Detention Centre or he should be released by taking bond with or without sureties specifying the conditions for his stay in any particular place as per Section 3(2)(a) to (f) of the Foreigners Act. If the accused person is detained in the jail by the court, in such an eventuality, the court has to examine the situation whether he should be kept in jail or in the Detention Centre depending upon the facts and circumstances of each case and the heinous nature of offence committed by him other than the offences under the Foreigners Act and Passports Act etc., and further if the persons are acquitted even then the Competent Authorities have got any doubt with regard to the nationality of such person, can file appropriate application before the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 and also keep such person in the Detention Centre till the deportation takes place by the Competent Authority. Further, if the accused is ordered to kept in regular jail either rejecting the bail or is convicted and is sentenced to undergo imprisonment, appropriate Government have to take or initiate action from the date of registration of the FIR and keep the deportation papers ready to deport the said person immediately after the sentence 26 CC.No.19789/22 is completely undergone by such person and thereafter, immediately, deport such person to their mother country.
89. Apart from the above, this court also feels it just and necessary to direct the trial Courts to deal with the matters where a foreign national is involved and alleged to have committed the offence under the Foreigners Act and other offences:
(4) If the accused is convicted by the court, the court has to direct the Competent Authorities to take appropriate steps for deportation of such foreign national immediately after serving the sentence by them. If the accused is sentenced, in such an eventuality, they should be kept in regular prison and not in the Detention Centre as they are considered to be the convicts and they are to be treated on par with the other convicts of our country.
As per the dictum of the Hon'ble High Court of Karnataka if the accused persons are convicted the court has to direct the competent authorities to take appropriate steps for deportation of the foreigners after serving their sentence by them and in that eventuality they should be kept in regular prison and not in Detention center as they are considered to be the convicts and they are to be treated on par with the other convicts of this country.
In view of the dictum of the Hon'ble High Court of Karnataka since the accused persons have found guilty of the 27 CC.No.19789/22 offence u/s.14 of Foreigners Act, this court felt that they have to kept in regular prison till completion of their sentence periods and after sentence period is over, they have to be kept in detention center till the authority have take steps for deportation of the accused no.1 and 2. Accordingly, I proceed to pass the following:
ORDER Acting under section 248(2) of Cr.P.C. accused persons are hereby Convicted for the offence punishable U/s.14 of Foreigners Act and sentenced to undergo Simple Imprisonment for a period of 1 year and fine of Rs.5000/ each. In default of payment of fine amount, they shall undergo Simple Imprisonment for a period of one month.
Acting under section 248(2) of Cr.P.C. accused persons are hereby Convicted for the offence punishable U/s.12(1) (c) of Passport Act and sentenced to undergo Simple Imprisonment for a period of 1 year and fine of Rs.5000/ each. In default of payment of fine amount, they shall undergo Simple 28 CC.No.19789/22 Imprisonment for a period of one month.
Both the sentences shall run concurrently.
Since the accused no.1 and 2 are in JC from 26/4/22, they are entitled for the set off.
JC is directed to give set off by deducting the JC period of the accused persons during trial.
As per the dictum of the Hon'ble High Court of Karnataka in Babul khan v/s.State of Karnataka as discussed above, after serving their sentence as above, the SHO of K.G.Nagar is hereby directed to take appropriate steps for deportation of the accused persons to their country.
JC is directed to intimate the SHO of K.G.Nagar Police Station after serving their sentence and hand over them to K.G.Nagar Police Station for deportation.
After completion of sentence period till deportation of the accused persons, they shall 29 CC.No.19789/22 kept in detention center. The SHO of K.G.Nagar Police Station is directed to take the accused persons after completion of sentence period and keep them in Detention center till deportation and to proceed for deportation.
Supply the free copy of this Judgment to the accused persons.
CMO is directed to intimate the same to the JC and SHO of K.G.Nagar Police Station.
(B.C.Chandrashekar) XXIV A.C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the Prosecution:
PW1 : Abraham.J.M PW 2 : Mohammed Ali Imran PW 3 : Ramesh
Documents marked for the Prosecution:
Ex.P1 : Complaint
Ex.P.2 : FIR
30 CC.No.19789/22
Ex.P.3 and 4 : Seizure mahazars
Ex.P.5 : Report
Ex.P.6 : Information
Ex.P.7 to 13 : Letters
Ex.P.14 and 15: Voluntary statements of the accused persons Ex.P.16 and 17: Letters Ex.P.18 to 23 : D Extracts Ex.P.24 : Reminder Ex.P.25 : Report Ex.P.26 : Circular.
Material objects marked for the Prosecution: NIL Witnesses examined for the accused: NIL Documents marked for the accused: NIL (B.C.Chandrashekar) XXIV A.C.M.M., BENGALURU.