Delhi District Court
State vs Madhu Bala Dev on 3 April, 2024
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE-08, SOUTH WEST DISTRICT, DWARKA COURT, NEW
DELHI
STATE VS. MADHU BALA DEV
FIR NO: 231/2023
P. S Uttam Nagar
U/s 14C Foreigners Act
Crc No./8431/2023
JUDGMENT
Date of its institution : 22.07.2023
Name of the complainant : Head Constable Yad Ram Yadav
Date of Commission of offence : 11.05.2023
Name of the accused : Madhu Bala Dev
W/o Late Sh. B. L Dev, R/o C-6B,
Anand Vihar, Uttam Nagar, Dwarka,
New Delhi
Plea of accused : Not Guilty
Case reserved for orders : 19.03.2024
Final Order : Convicted
Date of orders : 03.04.2024
Name of APP : Sh. Gaurav Dutt
0
Digitally signed
by ANIMESH
ANIMESH KUMAR
KUMAR Date: 2024.04.03
17:31:54 +0530
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1.Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Madhu Bala Dev for having committed the offence punishable u/s 14C of Foreigners Act.
2.Briefly stated, the present FIR was registered on the basis of complaint filed by Head Constable Yad Ram Yadav. As per the complaint one foreign national namely Nwoebo Ekwunife Marcy who was of Nigerian nationality was arrested by ATS Gujarat from Uttam Nagar on 11.05.2023 vide DD No. 100A dated 11.05.2023. During the arrest, it was found out that the said foreign national was residing at H. No. C-6B, 2nd Floor, Anand Vihar, Uttam Nagar, New Delhi. The visa of the said foreign national had already expired on 19.09.2022, however, he continued to reside in India on the above said property as tenant even after the expiry of the visa. The accused was the registered owner of the said property and she had inducted the foreign national as tenant. Therefore, in this manner, the accused had abetted a foreign national to commit an offence punishable u/s 14 Foreigners Act by continuously residing in India even after the expiry of his visa period, and, therefore, the accused committed an offence punishable u/s 14C Foreigners Act.
1 Digitally signed by ANIMESH
ANIMESH KUMAR
KUMAR Date: 2024.04.03
17:32:02 +0530
3. After completing the formalities, the investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused Madhu Bala Dev. Thereafter, charge was framed against the accused vide order dated 09.01.2024 for the offence punishable u/s 14C Foreigners Act to which she pleaded not guilty and claimed trial.
4.In order to prove the guilt of accused, the prosecution examined only one witness i.e. HC Yad Ram Yadav. During the examination-in-chief, he deposed that on 11.05.2023, he was posted as Head Constable at PS Uttam Nagar. He had received DD No. 100A vide which he got the information that one foreign national was apprehended in CR No. 2/2023 by the ATS Gujarat under NDPS Act. The information regarding the arrest of foreign national was given at PS Uttam Nagar vide diary no. 2165 dated 11.05.2023. The said entry was marked to me and it was found that the foreign national was residing in India without VISA and passport. He further deposed that on 17.05.2023, he went to the house of the accused and found that the foreign national was residing there on rent. He prepared the tehrir in the present case Ex. PW-1/A and got the FIR registered. After the registration of the FIR, he recorded the disclosure statement of the accused Ex. PW-1/B and released her after giving her notice u/s 41A Cr.P.C. The said notice is Ex. PW-1/C. The accused was 2 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2024.04.03 17:32:08 +0530 bound down vide pabandinama Ex. PW-1/D. He correctly identified the accused in the Court.
5.PW-1 was duly cross-examined by Ld. Counsel for the accused. He denied the suggestion that he was deposing falsely at the instance of the officials of ATS Gujarat. He also denied the suggestion that he did not make proper investigation regarding the accused. He also denied the suggestion that the accused was falsely implicated in the present case.
6.The accused also admitted the genuineness of the registration of the present FIR and certificate under section 65B of the Indian Evidence Act, Ex. X-1 to X-2 respectively, u/s 294 Cr.P.C. Hence, formal proof of these documents were dispensed with.
7.After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 19.03.2024. Thereafter, statement of accused persons was recorded u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") on the same day wherein all the incriminating circumstances were put to her which she denied and took a defence that she was falsely implicated in the present case. She chose not to lead defence evidence.
8.Thereafter, the final arguments were heard. Ld. APP urged that the prosecution witness has completely supported the case of the 3 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2024.04.03 17:32:14 +0530 prosecution. One foreign national was found residing on the property of the accused even after the expiry of his visa.
9.Ld. Counsel for the accused, on the other hand, argued that the prosecution has failed to prove its case beyond reasonable ground, therefore, accused may be acquitted in present case. It is further argued that IO of this case has not included independent witnesses to prove the case. It is further submitted that accused never let out her property to Nwoevo Ekwunifemarcy as tenant and IO of this case has failed to prove that Nwoevo Ekwunifemarcy was staying at the given address as a tenant. It is further contended that the prosecution could not establish the fact that the visa of the said foreign national has expired. Ld. Counsel prayed that accused in this case be acquitted as prosecution has failed to prove its case beyond reasonable doubts.
10.I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
11.Section 14C of the Foreigners Act states that whoever abets any offence punishable under section 14 or section 14A or section 14B shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.
4 Digitally signed by ANIMESH
ANIMESH KUMAR
KUMAR Date:
2024.04.03
17:32:21 +0530
12.Therefore, in order to fulfill the ingredient of Section 14C, prosecution must prove that accused in this case has abetted an offence u/s 14/14A/ 14B of the act. Hence, it is imperative for the prosecution to prove the following facts in order to convict the accused Madhu Bala Dev in the present case.
• The accused Madhu Bala Dev is the owner of the property situated at H. No. C-6B, Anand Vihar, Uttam Nagar, New Delhi; • The accused had inducted a foreign national namely Nwoevo Ekwunifemarcy as her tenant in her property despite knowing that his visa has expired; and • The visa of the said foreign national had already expired i.e. he was found residing in India without having a valid visa and thereby committed an offence u/s 14 Foreigners Act.
13.After perusing the materials available on record and considering the submissions made by both the parties, I find that the prosecution has failed to prove the guilt of the accused Madhu Bala Dev for the offence punishable u/s 14C Foreigners Act for the reasons discussed in the subsequent paragraphs.
5 Digitally signed by ANIMESH
ANIMESH KUMAR
KUMAR Date: 2024.04.03
17:32:27 +0530
14.First and foremost, it should be noted that the prosecution has brought nothing on record to prove that the accused Madhu Bala Dev is the owner of the property in question. No document in this regard has been brought on record. IO is also silent on this aspect. It appears that the IO did not even conduct any investigation on this part to conclusively establish that the accused is the owner of the property situated at H. No. C-6B, Anand Vihar, Uttam Nagar, New Delhi. Not even a single public witness or any other witness apart from the IO was examined on this aspect.
15.Secondly, the prosecution has also failed to establish that fact that the foreign national namely Nwoevo Ekwunifemarcy was residing at H. No. C-6B, Anand Vihar, Uttam Nagar, New Delhi as tenant. It should be noted that the present case is only based on the alleged assertion of the said foreign national and disclosure statement of the accused. The said foreign national Nwoevo Ekwunifemarcy at the time of his arrest by ATS Gujarat in NDPS matter had claimed that he was residing at H. No. C-6B, Anand Vihar, Uttam Nagar, New Delhi at that time. Interestingly, the said foreign national has not been included as a witness in this matter by the IO nor has he been examined by the IO in the entire investigation. Furthermore, no independent witness has been examined by the IO of this case to make his case creditworthy. Mere statement of a person that he was living 6 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2024.04.03 17:32:33 +0530 as a tenant at some property does not by itself prove the same, more so when the said person never testified in the court qua the same. The prosecution is duty bound to prove that the accused was residing at H. No. C-6B, Anand Vihar, Uttam Nagar, New Delhi at the relevant time. However, it failed to prove the same beyond reasonable doubts.
16.Thirdly, it is also imperative for the prosecution to prove that the foreign national has committed any of the offences punishable u/s 14/14A/14B of the Foreigners Act. In the present case, the prosecution was duty bound to prove that the accused was residing in India after the expiry of his visa. However, surprisingly, the IO is completely silent on this aspect. No documents in this regard have been tendered in evidence. No other witness has been examined by the prosecution to prove the same.
17.Last but not the least, even if it is assumed that the accused is the registered owner of the property situated at H. No. C-6B, Anand Vihar, Uttam Nagar, New Delhi and has inducted a foreign national in the said property as tenant, then also it cannot be automatically inferred that the accused has abetted the foreign national in staying in India after the expiry of his visa if she was not aware about the status of his visa. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Abinash Dixit vs. State of Madhya Pradesh Criminal Appeal No. 7 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2024.04.03 17:32:39 +0530 267 of 2022, wherein the Apex Court while interpreting the term "abet" in the context of an offence punishable u/s 14C Foreigners Act has held the following:
"The word 'abet' is an essential ingredient of Section 14-C, and has received judicial interpretation. 'Abet' means to aid, to encourage or countenance. An abetment of the offence occurs when a person instigates any person to do that offence or engages with another person(s) in doing that thing. Mere passivity and insouciance will not tantamount to offence of abetment."
18. Therefore, in the instant case, the prosecution has brought nothing on record on establish that the accused has played an active role or provided active aid to the foreign national to remain in India after the expiry of his visa. In fact, there is nothing on record to show that the accused was aware about the status of visa of the said foreign national.
19.Therefore, in view of the above discussions and findings, I find that prosecution has miserably failed to prove the guilt of the accused for the offence punishable u/s 14C Foreigners Act beyond reasonable doubt in the present case.
20.Hence, the accused Madhu Bala Dev stands acquitted for the offence punishable u/s 14C Foreigners Act.
Announced in the open court
Digitally signed 8
by ANIMESH
ANIMESH KUMAR
KUMAR Date:
2024.04.03
17:32:45 +0530
Digitally signed
ANIMESH by ANIMESH
KUMAR
On 03.04.2024 KUMAR Date: 2024.04.03
17:32:51 +0530
(Animesh Kumar)
MM-08, South West
Dwarka/ New Delhi
It is certified that this judgment contains 09 pages and each Digitally signed by ANIMESH page bears my signatures. KUMAR ANIMESH KUMAR Date: 2024.04.03 17:32:57 +0530 (Animesh Kumar) MM-08, South West, Dwarka/03.04.2024 9