Bangalore District Court
The State vs Mohammed Suman -Split Up on 13 December, 2022
KABC030049012017
Presented on : 19.01.2017
Registered on : 19.01.2017
Decided on : 13.12.2022
Duration : 05y/10m/24days
IN THE COURT OF
XLI ADDITIONAL METROPOLITAN MAGISTRATE
AT : BENGALURU
PRESIDED OVER BY TATTANDA DAMAYANTI SOMAYYA
B.A.,LL.B.,
XLI Addl. Metropolitan Magistrate
Bengaluru
Dated on this 13th day of December 2022
C.C.No.2249/2017
COMPLAINANT : The State
by Bellanduru Police Station.
-V/s-
ACCUSED : 1. Mohammed Suman -Split Up
2. Mohammed Rasil -Split Up
3. Bilal Sheikh -Split Up
4. Mohammed Zakir Shariff -Split Up
5. Soger -Split Up
6.Mizan -Split Up
7. Lakshmi Narayana
S/o. Late C.Ramaswamy,
Aged 45 years,
R/at. Behind BMTC Bus Stand,
Dommaluru, Bengaluru.
2 C.C.No.2249/2017
8 . C.R.Kemparaju @ Rajanna
S/o. Late C.Ramaswamy,
Aged 48 years,
R/at. Behind BMTC Bus Stand,
Dommaluru, Bengaluru.
Date of Commission of 16.11.2016
offence
Date of report 16.11.2016
Date of arrest On 09.03.2017 the accused
No.8 and 21.06.2017 the
accused No.7 got enlarged
themselves on bail.
Name of the complainant Shivanna
Date of commencement of 13.11.2021
recording Evidence
Date of closing evidence 07.11.2022
Offences complained of U/Sec.14, 14A(a)(b) of
Foreigners Act
Opinion of the Judge As per final orders
State Represented by Senior Asst.Public Prosecutor
Accused Represented by Sri. Harish Kumar & P. G.
Rajath Gowda.,Advocate
JUDGMENT
[Delivered on 13.12.2022] The P.S.I of the then HSR layout, now Bellanduru Police Station has filed charge sheet against the accused for the offences punishable U/Sec.14, 14A(a)(b) of Foreigners Act. 3 C.C.No.2249/2017
2. Brief facts of prosecution case is as follows:
On 16.11.2016, the accused No.7 and 8 being the owners of the lands abutting to the lake situated at Bhoganahalli, H.S.R.layout, Bellanduru illegally permitted the accused No.1 to 6, the nationalists of Bangladesh to reside in India at their lands by putting sheds knowing fully well that, they have entered India without any permission and thereby committed the offences. On the basis of complaint given by the CW.1, the then HSR layout, now Bellandur Police have registered this case in Cr.No.718/2016.
3. After the investigation, the IO filed charge sheet against the accused. This Court has taken cognizance of the offences punishable U/Sec.14, 14[A][a][b] of Foreigners Act.
4. The case against accused No.1 to 6 is split up and separate case is registered against them in C.C.No.37948/2022.
5. On 09.03.2017 the accused No.8 appeared before the Court and got enlarged him on bail. On 21.06.2017, the accused No.7 appeared before the Court by obtaining anticipatory bail and got 4 C.C.No.2249/2017 enlarged him on bail. This Court complied with Sec.207 of Cr.P.C and furnished charge sheet copies to the accused No.7 and 8.
6. This Court heard both the parties. As there were no grounds to discharge the accused No.7 and 8, this Court framed the charges for the offences punishable U/Sec. 14, 14[A[[a][b] of Foreigners Act. The accused No.7 and 8 did not plead guilty. They claimed to be tried.
7. In order to prove its case, the prosecution got examined 4 witnesses as PW.1 to 4 and got marked Ex.P.1 to 18 documents. After completion of the prosecution evidence, the statement of the accused No.7 and 8 was recorded U/Sec.313 of Cr.P.C. The accused No.7 and 8 denied the incriminating evidence led against them. They did not chose to lead their defence evidence.
8. I have heard the arguments of Senior APP and Sri. H.K. and P.G.R Advocates.
9. On the basis of allegations made against the accused, the following points arise for my consideration:
5 C.C.No.2249/2017
1. Whether the prosecution proves beyond all reasonable doubt that on 16.11.2016, the accused No.7 and 8 being the owners of the lands abutting to lake situated at Bhoganahalli, H.S.R.layout, Bellanduru illegally permitted the accused No.1 to 6, the nationalists of Bangladesh to reside in India at their lands by putting sheds knowing fully well that, they have entered India without any permission and thereby they have committed the O/P/U/Sec.14, 14[A][a][b] of Foreigners Act?
2. What order?
10. My answers to the above points are as under:
Point No.1 : In Negative Point No.2 : As per final orders for the following:
REASONS Point No.1 :
11. The burden is casted on the prosecution to prove that, the accused No.7 and 8 being the owners of the lands abutting to lake situated at Bhoganahalli layout, H.S.R.layout, Bellanduru illegally permitted the accused No.1 to 6, the nationalists of Bangladesh to 6 C.C.No.2249/2017 reside in India at their lands by putting sheds knowing fully well that, they have entered India without any permission. In order to prove its case, the prosecution got examined the CW.1 as PW.1, Asst. foreigners regional registration officer-CW.4 as PW.2, police official-CW.9 as PW.3 and the IO/CW.10 as PW.4 and got marked the report given by PW.2 as Ex.P.1, complaint as Ex.P.2, FIR as Ex.P.3, spot mahazer as Ex.P.4, requisition as Ex.P.5, report given by Tahasildar as Ex.P.6 and RTC extracts as Ex.P.7 to 18.
12. CW.1/PW.1 Shivanna in his evidence has stated that, on 16.11.2016 while he was working as ASI at HSR layout police station, they received an information that, some Bangladesh nationalists are illegally entered Karnataka and they are residing within the jurisdiction of their station. Accordingly, himself and CW.6 to 10 were deputed to trace out them. They came to know that, they are residing at the lands of accused at Bhoganahalli. On the same day, they visited that land and arrested 6 Bangladesh nationalists and produced them before the SHO at 11.30a.m. Accordingly, he has given a report in this regard. 7 C.C.No.2249/2017
13. CW.2/PW.2 - Shankar in his evidence has stated that, while he was working as Asst. foreigners regional registration officer at Bengaluru, on 27.12.2016 he received a letter from HSR layout police, wherein they had sought information regarding 6 persons. On verification, he gave Ex.P.1 letter stating that those persons have not got registered their names.
14. CW.9/PW.3 - Dyavappa in his evidence has stated that, while he was working as constable at HSR layout police station, their SHO deputed himself, CW.1, 6 to 8 to produce Bangladesh nationalists, who are residing at the lands of Lakshminarayan and Rajanna of Bhoganahalli village by putting sheds. Accordingly, at 9.30a.m they went to the land of Lakshminarayana at Bhoganahalli and on verification they found plastic sheds are put in that land. They found 3 persons by name Mohammed Suman, Mohammed Rasil and Bilal Shaikh, the residents of Bangladesh. They did not possess any documents such as identity card, passport or visa to visit India. They told that, they have entered India without any permission and residing in the land of Lakshminarayana by 8 C.C.No.2249/2017 putting sheds and paying rentals to him and they are doing rag picking work for their livelihood. There was a land of Rajanna, abutting to that land. On verification they found 7 plastic sheds and 3 persons by name Mohammed Zakir, Soger and Mizan, the residents of Bangladesh. They did not possess any documents such as identity card, passport or visa to visit India. They told that, they have entered India without any permission and residing in the land of Rajanna @ Kemparaju by putting sheds and paying rentals to him and they are doing rag picking work for their livelihood. They arrested all the 6 persons and produced them before the SHO at 11.50a.m. Accordingly, CW.1 has given a report in this regard. He can identify those 6 persons.
15. CW.10/PW.4 - Paul Priya Kumar in his evidence has stated that, while he was working as PSI at HSR layout police station on 16.11.2011 at 11.50a.m, PW.1 produced 6 accused by name Mohammed Suman, Mohammed Rasil, Bilal Shaikh, Mohammed Zakir, Sogar, Mizan and gave Ex.P.2 report. On the basis of which, he registered Ex.P.3/FIR. He followed arrest procedure and 9 C.C.No.2249/2017 recorded their voluntary statements. On the same day at 12.30p.m he visited the spot and drawn Ex.P.4 mahazer in the presence of CW.2 and 3 till 1.20p.m. The PW.1 had shown the spot to him. He recorded the statements of CW.2 to 6 and produced the accused before the Court. He gave Ex.P.5 requisition seeking information regarding the land, in whose property the accused were residing. On 27.12.2016 he visited the office of Foreigners Regional Registration and sought passport details of the accused. From that office, he received Ex.P.1 report stating that no passport details are available with respect to those 6 accused persons. On 31.12.2016, he received RTC extracts and report of the lands from CW.5, where the accused were found residing. The RTC extracts enclosed to Ex.P.6 report are marked as Ex.P.7 to 18 respectively. During the course of investigation, accused No.7 and 8 were absconding. After completion of the investigation on 10.01.2017, he filed charge sheet against the accused.
16. On the basis of report given by PW.1 as per Ex.P.2, the then HSR layout police have registered this case, investigated the matter 10 C.C.No.2249/2017 and filed charge sheet against the accused. In Ex.P.1, the PW.1 had alleged that, Mohammed Suman, Mohammed Rasil, Bilal Shaikh, Mohammed Zakir, Sogar and Mizan, the Bangladesh nationalists were illegally residing in the lands of accused No.7 and 8 at Bhoganahalli village by putting sheds and they have entered India without any passport or visa.
17. Earlier, the accused No.1 to 6 were arrested and produced before the Court. They were granted bail. Subsequently, they did not appear before the Court regularly. Hence, as per order dated:
04.08.2021, the case against accused No.1 to 6, the Bangladesh nationalists is spit up and separate case is registered against them.
18. This case is registered against the accused for the offences punishable under sec. 14, 14[A][a][b] of Foreigners Act. In order to prosecute the accused under these provisions, the accused must be foreigners. In order to appreciate the evidence in proper manner, it is just and proper to know Sec.14 of Foreigners Act.
19. Sec.14 of foreigners Act: Penalty for contravention of provisions of the Act, etc- whoever, 11 C.C.No.2249/2017 [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 there under;
[c]. contravenes the provisions of this Act or of any order made there under 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 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 convicting Court why such penalty should not be paid by him. Sec.14[A]-Penalty for entry in restricted areas, etc: whoever- 12 C.C.No.2249/2017
[a]. enters into any area in India, which is restricted for his entry under any order made under this Act, or any direction given in pursuance thereof, without obtaining a permit from the authority, notified by the Central Government in the official Gazette, for this purpose or remains in such area beyond the period specified in such permit for his stay; or [b]. enters into or stays in any area in India without the valid documents required for such entry or for such stay, as the case may be, under the provisions of any order made under this Act or any direction given in pursuance thereof, Shall be punishable with imprisonment for a term which shall not be less than two years, but may extend to eight years and shall also be liable to fine which shall not be less than ten thousand rupees but may extend to fifty thousand rupees; and if he has entered into a bond in pursuance of clause[f] of sub-sec.[2] of sec.3, his bond 13 C.C.No.2249/2017 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.
20. By reading these provisions, it is clear that a person or persons can be prosecuted under these provisions, who is a foreigner and who is not the nationalist of India. But, in the present case, the accused No.7 and 8 are the citizens of India and they are the nationalists of India. They cannot be prosecuted under Sec.14 or 14[A][a][b] of Foreigners Act. If they have helped the foreigners to remain in India beyond the period exceeding the period for which the visa was issued to accused No.1 to 6, then the accused No.7 and 8 can be prosecuted U/Sec.107 of IPC only.
21. Now the Court has to see whether the accused No.7 and 8 permitted the accused No.1 to 6 to reside in their lands by putting sheds or not. There is an allegation in Ex.P.2 that the accused No.1 to 6 were found residing in the lands of accused No.7 and 8 by putting sheds at Bhoganahalli village and they were paying rentals to the landlords. There is no reference in Ex.P.2 about the survey 14 C.C.No.2249/2017 numbers of the lands in which the accused No.1 to 6 had put the sheds.
22. In Ex.P.4 spot mahazer also, there is no reference about the survey numbers in which the accused No.1 to 6 had put the sheds. In Ex.P.4 there is a recital stating that "¸ÀzÀj ¸ÀܼÀªÀ£ÀÄß CdªÀiÁ¬Ä¹ £ÉÆÃqÀ¯ÁV ¨sÉÆÃUÀ£ÀºÀ½î UÁæªÀÄzÀ PÉgÉAiÀÄ ¥ÀPÀÌzÀ°ègÀĪÀ ¸ÀĪÀiÁgÀÄ 10 JPÀgÉ «¹ÛÃtðzÀ SÁ° d«ÄãÀÄ DVzÀÄÝ, D d«Ää£À°è ¤Ã®Vj ªÀÄgÀUÀ¼ÀÄ ºÁUÀÄ VqÀUÀAmÉUÀ¼ÀÄ ¨É¼É¢gÀÄvÀÛªÉ. F d«Ää£À GvÀÛgÀ ¢QÌ£À ¥ÀtvÀÆÛgÀÄ ¸Àä±Á£ÀzÀ PÀqÉUÉ EgÀĪÀ SÁ° d«Ää£À°è ¸ÀĪÀiÁgÀÄ 7-8 ¥Áè¹ÖPï mÁ¥Áð¯ï¤AzÀ ¤«Äð¹gÀĪÀ ±Éqï UÀ½zÀÄÝ, ¥ÉÆð¸ÀgÀ ªÀ±ÀzÀ°èzÀÝ 6 d£À DgÉÆæUÀ¼ÀÄ ¸ÀzÀj ±ÉqïUÀ¼À£ÀÄß vÉÆÃj¹ EzÉà ¸ÀܼÀzÀ°è ±ÉqïUÀ¼À£ÀÄß ¤«Äð¹PÉÆAqÀÄ ªÁ¸À«zÀÄÝzÁV w½¹gÀÄvÁÛgÉ. As per the prosecution, that property is bounded on the East by Neelagiri farm thereafter lake, West by the way towards Panathur grave yard, North by vacant land and South by Bhoganahalli village road.
23. The prosecution has not produced any documents to show that the property described in Ex.P.4 is owned by accused No.7 and
8. From Ex.P.7 to 18 RTC extracts, it can be gathered that the 15 C.C.No.2249/2017 accused No.7 and 8 own lands at Bhoganahalli Village in various survey numbers. According to prosecution, the lands of accused No.7 and 8 are abutting to each other. As per Ex.P.7, one Ambli Yogesh owns 2 acres of land and accused No.7 owns 4.06 acres of land in Sy.No.45 of Bhoganahalli village. As per Ex.P.12, accused No.7 owns 19 guntas of land and B.K.Chandregouda, B.K.Munirajegouda, B.K.Manjunath, B.K.Anand Kumar and B.K.Ashwath Narayana jointly own 19 guntas of land in Sy.No.49/6 of Bhoganahalli village. As per Ex.P.18, one Ambli Yogesh owns 1 acre of land and Gangappa owns 1.15 acres of land in Sy.No.33/2 of Bhoganahalli village. But, the other persons named in those RTC extracts have not been cited as accused.
24. How the investigating officer find out the exact location of the land as the properties of accused No.7 and 8 has not been explained by the prosecution. The IO has not enquired the adjacent land owners not recorded their statements, to substantiate his version. As per Ex.P.1, the registration details of accused No.1 to 6, 16 C.C.No.2249/2017 the Bangladesh nationalists is not found in the Foreigners Regional Registration office.
25. As per Ex.P.7 to 18, the accused No.7 and 8 own landed properties at various survey numbers of Bhoganahalli Village. But, the prosecution has not produced any cogent evidence before the Court to show in which survey number of the property, the accused No.1 to 6 had put their plastic sheds, so as to say that the said property belonged to accused No. 7 and 8.
26. Inspite of issuance of repeated summons, non bailable warrants and proclamation warrants, the prosecution has not secured the presence of CW.2, 3 and 6. Hence, they are dropped from examination. Hence, no independent witnesses have appeared before the Court to say that, Ex.P.4 mahazer was drawn in their presence at the lands of accused No. 7 and 8.
27. During the course of cross examination, the PW.3 stated that, they have not enquired with any persons at the spot to know whom the land belongs in which they found the sheds. The PW.1 or the PW.4/IO did not care to take the photographs of the sheds, 17 C.C.No.2249/2017 said to be put in the lands of accused No.7 and 8. What were the articles found in the alleged sheds has not been mentioned in Ex.P.2 or in Ex.P.4. The PW.4 being the IO in his cross examination has stated that he was not able to find out the addresses of accused No.7 and 8 at the time of investigation. He did not record the statements of localites as he could not find any one.
28. The evidence of PW.1 to 4 is not at all helpful to the case of the prosecution to prove the charges leveled against accused No.7 and 8. The PW.4 being an IO did not produce any cogent evidence before the Court to say that, the accused No.1 to 6 had put their sheds in the lands of accused No.7 and 8. The IO has not produced any documents to show the existence of sheds in the lands of accused No.7 and 8 to connect them to alleged crime.
29. Hence, the allegations made against the accused No.7 and 8 appears to be baseless. In these circumstances, the evidence of PW.1 to 4 is not helpful to the case of the prosecution. From the evidence of PW.1 to 4, the charges leveled against the accused will not be proved. Moreover, the accused No.7 and 8 are not 18 C.C.No.2249/2017 foreigners. They cannot be prosecuted U/Sec.14 or 14[A][a][b] of Foreigners Act. Thus, the prosecution has failed to prove beyond all reasonable doubt that, the accused have illegally permitted accused No.1 to 6, the Bangladesh nationalists to reside in their lands by putting plastic sheds, who had entered India illegally. In such circumstances, I answer the point No.1 in Negative. Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER By exercising the powers conferred U/Sec.248[1] of Cr.P.C., the accused No.7 and 8 are acquitted from the charges of Sec. 14, 14[A][a][b] of Foreigners Act.
The bail bonds executed by the accused No.7 and 8 stands cancelled.
13.12.2022 [TATTANDA DAMAYANTI SOMAYYA] XLI ADDL.METROPOLITAN MAGISTRATE BENGALURU 19 C.C.No.2249/2017 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 : Shivanna
PW.2 : Shankar
PW.3 : Dyavappa
PW.4 : Paul Priya Kumar
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 : Letter of Foreigners Regional Registration
Office dated: 27.12.2016
Ex.P.1[a] : Signature of PW.2
Ex.P.1[b] : Signature of PW.4
Ex.P.2 : Report/complaint
Ex.P.2[a] : Signature of PW.4
Ex.P.3 : FIR
Ex.P.3[a] : Signature of PW.4
Ex.P.4 : Spot Mahazar
Ex.P.4[a] : Signature of PW.4
Ex.P.5 : Requisition addressed to Tahasildar
Ex.P.6 : Report given by Tahasildar
Ex.P.7 to 18 : RTC Extracts
LIST OF MO's MARKED ON BEHALF OF PROSECUTION Nil LIST OF WITNESSES EXAMINED FOR ACCUSED :
NIL 20 C.C.No.2249/2017 LIST OF DOCUMENTS MARKED FOR THE ACCUSED : NIL ....................................................................................
Dictated on : 09.12.2022
Transcribed on : 09.12.2022
checked on : 12.12.2022
Signed on : 13.12.2022
[TATTANDA DAMAYANTI SOMAYYA]
XLI ADDL.METROPOLITAN MAGISTRATE
BENGALURU
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