Karnataka High Court
Miss Tsepal Dickey vs The Immigration Officer on 17 December, 2015
Author: Rathnakala
Bench: Rathnakala
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2015
BEFORE
THE HON' BLE MRS. JUSTICE RATHNAKALA
CRIMINAL PETITION NO.4239/2015
BETWEEN:
MISS. TSEPAL DICKEY
D/O MR.TASHI NAMGYAL
AGED ABOUT 28 YEARS, N-VILALGE,
HOUSE NO-6, DHONDENLING SETTLEMENT,
KOLLEGAL TALUK,
CHAMARAJANAGAR DISTRICT
KARNATAKA STATE - 571 457. ...PETITIONER
(BY SRI S.G.BHAGAVAN, ADV.)
AND:
1. THE IMMIGRATION OFFICER
BUREAU OF IMMIGRATION
BANGALORE INTERNATIONAL AIRPORT
DEVANAHALLI
BANGALORE - 562 300 AND
2. THE STATE OF KARNATAKA
BY THE INSPECTOR OF POLICE
BANGALORE INTERNATIONAL
AIRPORT POLICE STATION
BANGALORE - 562 300. ...RESPONDENTS
(BY SRI KRISHNA S.DIXIT, ASG FOR R1,
SRI VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R2)
THIS CRL.P. IS FILED U/S.482 CR.P.C., PRAYING TO QUASH
THE ENTIRE PROCEEDINGS IN C.C. NO.3509/2014 IN THE COURT
OF THE CIVIL JUDGE (JR.DN.) AND JMFC, DEVANAHALLI.
2
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09/12/2015 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner herein is charge sheeted for the offence punishable under Section 420 of IPC read with Section 12 (1) AB of the Passport Act, 1967 (for brevity, 'Act'). But, there is no sub section "AB" to sub Section (1) to Section 12 of the Act. From the summary of the prosecution case mentioned at column No.12, it may be inferred that they are invoking the provision of Section 12(1)(a) (b) of the Act.
2. The summary of the prosecution as per column No.7 of the charge sheet is that, the petitioner being a refugee of Tibetan origin, fully knowing that she is not a citizen of India, with an intention to cheat the Government of India, during 2008, filed an application for passport. Suppressing the said fact, in the year 2010, she obtained Indian Refugee Certificate bearing No.Y0080772 and was caught while attempting to travel to Zurich, from the BIAL police.
3. Sri. S.G. Bhagavan, learned counsel for the petitioner submits that the petitioner was born on 9.4.1986 at 3 Dhondenling village, Kollegal Taluk. She was brought up and educated in the State of Karnataka. By virtue of Section 3(a) of the Citizenship Act, 1955, she is a citizen of India. She had filed a petition in Crl.P.2387/2014 challenging the registration of FIR against her. However, taking note of the fact that the charge sheet is already filed against her petition came to be disposed of on 16.06.2015. The main allegation against her is under Section 12(1)(b) of the Act and it is a non-cognizable offence by virtue of Schedule-II of Cr.P.C. Since the offence punishable is only upto 2 years, the police have no jurisdiction to investigate the matter without prior permission of the jurisdictional JMFC as mandated under Section 155(2) of Cr.P.C. As such, she had traveled once to Switzerland on 2.11.2011 and returned on 29.11.2011. Her sister is gainfully employed at Switzerland. Admitting the entire statements of charge sheet witness as proved, then also ingredients of Section 420 of IPC cannot be found. As per Section 15 of the Act, previous sanction of the Central Government is required to prosecute for any offence under the Act. The sanction obtained as at document No.10 is from the State Government. Procedural irregularity in the investigation goes to the root of the matter, the entire 4 proceedings being abuse of process of Court is liable to be quashed.
4. In reply, learned Assistant Solicitor General of India by way of memo produced the Gazette of India, Extraordinary, Part-II, Section 3, Sub section (i), dated 01.12.1979, whereby the Central Government authorized the State Government and the Administrators of the Union Territories, to sanction prosecution in respect of the offences under Section 12 of the Act. That convinced learned counsel for the petitioner to submit that petitioner is not resting her case on the ground of defective sanction.
5. During the course of arguments, on the submission of learned Assistant Solicitor General that the petitioner has given different versions about her place of birth, name of her father & place of her residence, the two applications filed by her while applying for passport and Indian Refugee Certificate were called for and perused. There is variation between these documents in respect of name of father of the petitioner her place of birth and place of residence. As per her application for passport, place of birth is Kodaikanal, Tamil Nadu, India; 5 father's name is Dawa Tashi Namgyal; current residential address (as on 8.11.2008) c/o B V Madhukar, 362/3, Lakshmi Road, 7th Cross, Shantiagar, Bangalore-560027. But in the application submitted by her (Passport application, Registration Form), on the basis of which she is issued Identity Certificate (with no objection to return to India, endorsement issued by Government of India, Ministry of External Affairs) her father's name is Tashi Namgya and place of birth is Dhondenling, her present Address is N-Village, House No.6, Dhondenling Settlement, Kollegal Taluk, Chamaraj Nagar Dist., Karnataka State.
6. Sri. Krishna S Dixit, learned Assistant Solicitor General, while pointing out to the above variances occurring in her two applications submits that the issue involved being very sensitive having long lasting repercussion at the national level matter can not be viewed lightly and proceedings can not be quashed. She being a Tibetan Refugee applied for Indian Passport by suppressing the material fact about her Tibetan origin. Later by suppressing about her application for Passport obtained Identity Certificate which will be issued to non-citizens 6 which can be used as Travel document. Having not disputed about furnishing varied versions in her applications, it is for her to prove her innocence during trial and petition is liable to be dismissed.
7. In the back drop of the above rival submissions, a glance at the charge sheet paper brings out that out of 6 witnesses cited CW1 is the Immigration Officer/Complainant who reproduces his complaint allegations; two of them are Immigration Officials who produced the petitioner before PSI, two are mahazar witnesses to the mahazar under which Refugee Certificate and other documents were seized by the Investigation Officer/PSI from the possession of petitioner, the 6th witness is the PSI who registered the complaint and submitted charge sheet to the Court. Material documents relied are the copies of Indian Refugee Certificate, Exit Permit issued by Deputy Commissioner, Chamarajanagar, application submitted by the petitioner for passport and sanction order of the Govt. for prosecution of the petitioner.
The Immigration Officer in his complaint, sought for further investigation and action in respect of following conduct of the petitioner:
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1) Attempting to obtain an Indian Passport.
2) Obtaining Indian Identity Certificate by
misrepresenting the facts.
8. Sri. S.G. Bhagavan, learned counsel for the
petitioner placing reliance of the judgment of Delhi High Court, in the case of Namgyal Dolkar Vs. Government of India, Ministry of External Affairs (WP No.12179/2009(C)) and judgment of this Court in the case of Tenzin Choephag Ling Rinpoche Vs. Union of India and Another, (WP No.15437/2013, (GM-PASS)) submits that children born to Tibetan parents at India between 26.01.1950 to 01.10.1987 are the citizens of India by birth by virtue of Section 3(1)(a) of the Citizenship(Amendment) Act, 1986. The petitioner is born on 09.04.1986 to parents of Tibetan origin, hence, by birth she is an Indian Citizen and no offence is committed by her by filing an application for Indian Passport. She changed her residential address after filing application for passport, hence, she could not receive communication from the Passport Officers to pursue for the passport. Since, the passport was not issued to her, she filed an application for Identity Certificate. There was no 8 occasion for her to disclose about her previous application for passport, since no column was prescribed in the format of application (about her previous application for Passport) thereby no offence is committed by her.
Initially, the case was registered for the offence under section 12(1A) of the Act. But there is no sub section as (1A) to section 12. It is an offence under Section 12(1-A) of the Act, that if a person not being a citizen of India makes an application for Passport, punishable with minimum imprisonment of 1 year extending upto 5 years with fine which shall not be less than Rs.10,000/- and maximum extends to Rs.15,000/-. But Section 12(2) (1-A) of the Act is not the penal provision quoted in the charge sheet. Even otherwise, the judgment of co-ordinate Bench of this Court in WP No.15437/2013 (GM-PASS, supra) is binding as long as it is not shown to be intercepted by the judgment of either larger Bench or judgment of Apex Court. Learned single Judge (in WP No.15437/2013) concurred with the judgment of Delhi High Court in WP (C) 12179/2009(supra) held that petitioner (before him born to parents of Tibetan origin born on 18.11.1985 before 1.7.1987) is certainly entitled to claim Indian Citizenship by birth. The petitioner stands on 9 the same footing as that of petitioner of WP No.15437/2013 and no offence under Section 12(1-A) can be inferred against her.
At the most from the admitted facts, it will attract penal provision of Section 12(1) (b) of the Act which is punishable with imprisonment which may extend to 2 years with fine and upto Rs.5,000/-.
By virtue of item No.3 of Schedule II to the Code of Criminal Procedure, the offence under Section 12(1)(b) is non- cognizable in nature. The procedure for registration of a non- cognizable offence and investigation is in accordance with the procedure contemplated under Section 155(1) & (2) o Cr.P.C. The Police Officer in charge of the Police Station on receiving an information about commission of a non-cognizable offence is obliged only to record information in the register maintained in the station and refer the informant to jurisdictional Magistrate. That is the procedure contemplated by section 155(1) of Cr.P.C., it is only after permission by the Magistrate to investigate as envisaged under Section 155(2) of Cr.P.C. he gets authority to investigate the matter. Here, the PSI in violation of mandatory procedure has registered and investigated the matter. Perhaps by registering the case with additional penal provision of Section 10 420 of IPC, he gave the colour of a cognizable case to a non- cognizable offence.
9. A dissection of Section 420 of IPC unfolds following ingredients:
1) Deception of any person.
2) Fraudulently or dishonestly inducing such person___
a) To deliver any property to any person
b) To consent that any person shall retain as property
3) Intentionally inducing the person to do or omit to do anything which he would not do or omit, if he was not so deceived Such act or omission causes or is likely to cause damage or harass to that person in body mind reputation of property.
10. The Apex Court in the case of Bishan Dass Vs. State of Punjab and Another, reported in (2014) 15 SCC 242, has held thus:
The essential ingredients to attract Section 420 of IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and (iii) 11 mens rea of the accused at the time of making the inducement.
11. The acts alleged against the petitioner failed to reach even the periphery of offence of Section 420. When the petitioner is shown to be entitled for the status of Indian Citizenship by birth where does dishonesty find a room? After all a passport is not a tangible property or a valuable security. That being so, the prosecution could not have registered the FIR for the offence under Section 420 of IPC.
By addition of Section 420 of IPC, the Investigating Officer, conveniently skipped the mandatory procedure contemplated by section 155 of Cr.P.C. and adopted the procedure under section 156 of Cr.P.C. which is contemplated in respect of cognizable offences.
This Court in any number of cases has taken consistent view that registration & investigation of a non-cognizable offence in violation of provision of Section 155(1) & (2) of Cr.P.C. vitiates the entire proceeding. That apart, there is another hiccup coming in the way of prosecution. The offence under Section 12(1)(b) of the Act being punishable with maximum period of 12 imprisonment of one year, there is bar under Section 468(b) of Cr.P.C for taking cognizance after one year of commission of offence. The application for passport was filed in the year 2008, she failed to produce her birth certificate when called upon by the Authorities. Using the very same identity certificate, she traveled to Switzerland during November 2010 & returned by 29.01.2011. On those occasions, authority had every opportunity to bring her to book, which they did not do.
12. The immigrant authority allowed her smooth exit and ingress at port of entry. The prosecution now cannot contend that the offence came to their knowledge only on 19.12.2013 when she tried to board the flight to leave India. That is another reason which mars the prosecution case. Except the details furnished by Immigration Officer on the basis of information maintained in the departure immigration clearance counter no further investigation is made, to point that she is involved in any other offence. Her prosecution and continuation of criminal proceedings is nothing but abuse of process of law and circumstance demand quashing of criminal proceeding in exercise of jurisdiction under Section 482 of Cr.P.C. 13
The petition is allowed. The entire proceedings in C.C. No.3509/2014 in the Court of the Civil Judge (Jr.Dn.) and JMFC, Devanahalli, is quashed.
In view of main disposal of the petition, IA No.1/2015 does not survive for consideration, hence, stands disposed of.
Sd/-
JUDGE JTR