Delhi District Court
State vs . Tariq Ali Khan on 12 February, 2007
IN THE COURT OF MS. KAMINI LAU: ACMM :
NEW DELHI
State Vs. Tariq Ali Khan
FIR No. 433/1998
PS IGI Airport
U/s. 384 IPC
: J U D G M E N T :
1. Sr. No. of the case: 70/2/1999
2. Date of offence: 11.9.1998
3. Name of the complainant: Ms. Era Gupta
4. Name of the accused: Tariq Ali Khan
S/o Sh. Tareek Ahmed
R/o 7J, Police Colony,
Model Town, New Delhi
5. Offence complained off: U/s. 384/465 IPC & 12 PP Act
6. Plea of the accused: Pleaded not guilty
7. Final order: Convicted
8. Date of such order: 12.2.2007
9. Brief reasons for the said decision:
The case of the prosecution is that on 11.9.1998 at 7:35 pm at departure right wing of IGI Airport the accused intentionally put the complainant and her husband in fear of making a false case against them and dishonestly induced them to deliver 500 dollar. It is also alleged that the accused voluntarily and dishonestly tampered the passport bearing no. A3538466 which was belonging to the complainant by tearing pages no.
: 1 : 29/30 of the said passport. Further the accused dishonestly and fraudulently made the passport a false documents by unauthorizedly tearing and removing the pages from the passport.
On the basis of the complaint, FIR had been registered and after completion of investigations charge sheet was filed in the court. Copies were supplied to the court after which a charge u/s. 384/465 IPC and 12 PP Act was framed against the accused to which he has pleaded not guilty and has claimed trial.
In order to prove its case the prosecution has examined as many as 11 witnesses. PW1 Ct. Shyam Lal has proved that on 11.9.1998 he was handed over one rukka and he was sent to the police station for registration of FIR. He has proved the arrest of the accused vide memo Ex.PW1/A and his disclosure statement Ex. PW1/B. In his crossexamination the witness has stated that he does not remember the time when the accused was arrested. According to him, he did not make any DD entry in the police station.
PW2 Era Gupta is the complainant has deposed that on 11.9.1998 she alongwith her husband had to take flight no. MK 745 for Mauritius and after collecting boarding cards from the Airlines counter and embarkation card they approached for immigration check. She has stated that they produced their passports and travel documents before the immigration officer i.e. the present accused Tariq Ali Khan who asked her husband how many dollars he had. She has further stated that the : 2 : immigration officer told them that they could not go to Mauritius and Singapore as the passport was not having the visa for Singapore and he had kept the passport with him and threatened that would make a case against them. According to the witness, the immigration officer demanded money from them under the treat and her husband gave 500 dollars to the accused after which he off loaded them and left them outside the Airport and asked them not to disclose the fact to anybody. She has testified that they went to their house and told their parents about what had happened and the fact that she found the page missing from the passport on which the visa of Singapore was affixed. The witness has deposed that the accused Tariq Ali Khan had torn the visa page during the period when the passport was kept with him. She has proved her complaint which is Ex.PW2/A and her passport Ex.P1 was seized vide memo Ex.PW2/B. In her crossexamination the witness has stated that the Airlines official handed over her the boarding card and embarkation card alongwith her passport and the air ticket. She does not remember the number of the counter on which she had approached. She has admitted that the official work done by the immigration officer can be seen clearly by the pax. She has further stated that when the immigration officer told her that her passport was not having visa of Singapore then she demanded back the passport from him but he did not return the same. She has testified that they did not approach the senior officers as they were afraid a lot. PW2 has stated that her family members : 3 : advised her to get the case registered after which she reached the airport at about 12:00 pm to 1:00 pm alongwith her husband, her father in law and her maternal uncle. According to the witness, the accused was not arrested in her presence and she informed the officer name of the accused as Tariq Ali Khan which was written on the name plate of his shirt.
PW3 Deepak Gupta is the husband of PW2 and has corroborated the testimony of PW2 in toto. In his cross examination the witness has stated that the investigating officer recorded the statement of his wife and they did not give any written complaint to the police. He has denied the suggestion that he did not willing to go to Mauritius and Singapore and that he had torn the page himself. He has also denied that the case was registered against the under the pressure of ACP Braham Singh and DCP Grewal who were present in the vigilance room with the complainant. He has admitted that he did not see the accused while tearing the page and states that he has identified the accused by his name plate on his shirt.
PW4 Rajiv Bajaj has proved that on 11.9.1998 he was working as Station Manager at IGI Airport and at about 7:45 am two passengers namely Era Gupta and Deepak Gupta came to his counter alongwith an immigration officer in uniform whose name was later on revealed as Mohd. Tarik Ali Khan. He has testified that both the passengers were not able to travel due to some problems and according to him, when he asked the passengers they also confirmed the same and stated that they had some : 4 : emergency problem at home. He has stated that they deleted both the passengers from check in computer and their baggages were returned.
In his crossexamination the witness has stated that after checking the documents were returned to the concerned persons.
PW5 Ct. Shri Ram had joined the investigations with the investigating officer and has proved that he alongwith the IO went to the house of the accused and during the search nothing incriminating was recovered.
PW6 Jaswinder Singh has stated that on 11.9.1998 he was working as Traffic Assistant at IGI Airport and had checked the passports of Era Gupta and Deepak Gupta. According to him, he had checked in the said passengers and had checked the passports, tickets and weight of the luggage and handed over the boarding passes. He has testified that the visa for Singapore and Mauritius was on the passports of both the passengers.
In his crossexamination the witness has stated that when the passenger is off loaded from the flight, the reasons have to be mentioned though it is not mandatory.
PW7 Madan Lal Gupta is the maternal uncle of the complainant Era Gupta and has stated that on 11.9.1998 at about 12:30 pm he was told that Era Gupta was going to Singapore and Mauritius, had been apprehended at IGI Airport due to missing of visa page on the passport of Era Gupta. He has deposed that he went to the IGI Airport and reached the immigration hall : 5 : alongwith the police where Era Gupta pointed out and identified the clearing officer. According to the witness, the accused Tariq Ali Khan came at Airport immigration hall after which the accused was arrested. He has further testified that someone from Airport had verified that the visa for Singapore had been issued on the passport of Era Gupta.
In his crossexamination the witness has stated that the accused Tariq Ali Khan came inside the Airport on calling by his colleague. He has denied the suggestion that DCP Grewal, ACP Deepak Chopra, ACP Braham Singh, SI Rajesh Sharma and SI Harvinder Singh and ASI Abrar Hussain was present in the vigilance room. He has further denied that ACP Braham Singh advised to take 500 dollars from Era Gupta and show the recovery from the accused but DCP Grewal refused to do so that it would be too much against the accused.
PW8 ASI Ishwar Singh has proved having produced the photocopy/ duty chart attested by the ACP before the IO SI Rakesh Kumar. In his crossexamination the witness has admitted that some immigration officer do not come as per duty chart due to their leaves. He has admitted that two passengers at a time cannot go together to a counter and that due to the non rush hours in the morning time, mostly immigration officers go for natural call, refreshment etc. after the notice of IC Wing. He has admitted that the name plate of the immigration officer displayed at the immigration counter and that SI Tariq Ali Khan was sorting out the Goshwara of the flights with the duty officer : 6 : Hari Singh Yadav at 7:15 am. Further he admits that SI T.A. Khan came with him to his office to deposit his Icard between 7:30 to 8:00 am.
PW9 HC Mohd. Shamdhad is a formal witness being the duty officer who has proved the registration of FIR copy of which is Ex.PW9/A. PW10 SI Rajesh Sharma is the investigating officer who has proved that on 11.9.1998 the complainant Era Gupta alongwith her husband met him and she got her statement recorded which is Ex.PW2/A. He has proved his endorsement on the complaint which is Ex.PW10/A and has stated that he alongwith the complainant went inside the immigration hall where she had pointed out one counter second from left. He has deposed that the complainant had informed him that one T.A. Khan was sitting on that counter and had torn the pages and taken 500 dollars. The witness has proved having interrogated the accused after which the accused was arrested vide his personal search memo Ex.PW1/A and his disclosure statement Ex.PW1/B was recorded. PW10 has testified that on the next day he went to the house of accused alongwith Ct. Sri Ram but nothing was recovered from the house search which was conducted vide memo Ex.PW10/B. He has proved the site plan Ex.PW10/C and states that he got verified the fact whether the visa was issued to the complainant or not. According to the witness, the High Commission of Singapore had verified that they had issued a single journey visa on 8.9.1998 to the complainant which report : 7 : is mark A. In his crossexamination the witness has stated that he did not collect the computer print chart of immigration right wing Shift B. He has denied the suggestion that the computer print chart shows that the accused was not clearing from 5:49 am to 8:00am. He has also denied that the complainant was apprehended by the airport authority/ airline officer due to the missing visa page of the passport of the complainant. He is unable to tell whether the accused was sorting out the Goshwara with the duty officer Hari Singh Yadav from 5:49 am to 7:30 am and after that he was with the duty officer Ishwar Singh, Reader to the ACP Immigration upto 8:00 am. He has stated that he did not apply for sanction s required from the competent authority for the prosecution of accused.
PW11 Inspector P.P. Singh has proved that on 11.12.1998 he had recorded the statement of one Jasvinder Singh u/s. 161 Cr.P.C. who was the traffic assistant in Air India. In his crossexamination the witness has stated that he did not obtain the sanction u/s. 197 Cr.P.C. and also he did not collect any record from Sh. Jasvinder Singh on that date regarding loading and off loading.
Thereafter the statement of the accused u/s. 313 Cr.P.C. was recorded wherein he has denied all the allegations against him and has stated that on the relevant date he was not clearing at the immigration office from 5:49 am to 8:00 am and was working with the duty officer Hari Singh Yadav. He has : 8 : further stated that at 12 or 12:30 noon a telephonic message came to him by ACP Braham Singh that there was an urgent work due to which reason he reached at the airport at 1:20 pm where SI Harvinder Singh took him to the vigilance room inside the IGI airport and he was arrested on the order of ACP Mr. Chopra.
The accused has examined 5 witnesses in his defence. DW1 Yoginder Dutt has proved that after clearing the passenger all the record was handed over to Air Mauritius and the required record is available with the Manager Rajiv Bajaj.
DW2 HC Bhagwan has stated that the relevant record has not traceable as the same has been transferred to CFB branch. He has placed on record the report in this regard which is Ex.D1.
DW3 Inspector Hari Singh Yadav has stated that on 1011.9.1998 his duty was to collect the embarkation card through constable to sort the Goshwara Nationality wise and counting the cards. He has stated that due to heavy rush in the night he had taken the help of accused Tariq Ali Khan from 6:15 am to 7:15 am and the name plate issued by the department are kept on the counter. According to him, thereafter Tariq Ali Khan was called by the Reader of ACP Immigration at about 7:30 am.
In his crossexamination the witness has stated that the period when he called the officer the seat of the immigration officer remained vacant. He has denied the suggestion that they were involved in the extortion of money from the rightful passenger by threatening them.
: 9 : DW4 Achinto Boss has placed on record the attested photocopy of check in/ deletion record of the passengers. He has stated that as per record the check in was done on 11.9.1998 at about 0633 hours the passenger was accepted at 0703 hours, the boarding card was issued at about 0703 hours and the modification/ message regarding not travelling by the passenger at about 0744 hours and baggage/ pax declaration as one at about 0745 hours on the same day.
I have heard the oral arguments made before me and also considered the written submissions filed by the counsel for the accused. I have further gone through the various authorities placed before me which are as under:
1. Hare Krishna Singh Vs. State of Bihar reported in AIR 1988 Supreme Court 863.
2. Lakhvinder Singh Vs. State of Punjab reported in 1998 Crl. L. J. 468.
3. Ashok Bhargava Vs. Calcutta High Court (DB) reported in 1996 (2) Crimes 287.
4. R. Pandey Vs. State of Bihar reported in AIR 1976SC 2147.
5. Major Pant Vs. State reported in 1996 (36) DRJ .
6. Gauri Shanker Prashad Vs. State of Bihr reported in 2000 (2) JCC (SC) 690.
7. Jatinder Gupta Vs. UT of Chandigarh reported in 1994 CC Cases 562.
8. Z.U. Siddqui Vs. Bal Kishan Kapoor & Ors. reported in 2005 (2) JCC 1149.
9. Inspector Rajender Saini Vs. State reported in 2005 (2) JCC 735.
: 10 : It has been vehemently argued by the Ld. Counsel for the accused that there is an unexplained delay of 8 hours in registration of the FIR which is fatal to the case of the prosecution. According to him no reliance can be placed on the statements of the complainant and her husband. He has argued that the accused had been arrested on 11.9.1998 in the immigration hall after the registration of case after 3:30 pm but the accused was present on duty at 3:30 pm whereas in the evidence it has come on record that he had left his office/ duty at about 8:00 am on that day which fact is apparent from the statement of PW8 ASI Ishwar Singh. Ld. Counsel has pointed that the accused has not been subjected to the judicial test identification parade which was a must since both the witnesses did not know the accused and he was not arrested in their presence. It is also stated that the sanction u/s. 15 of Passport act has neither been applied for nor proved which is mandatory, hence no cognizance can be taken u/s. 12 PP Act. It is further stated that the sanction u/s. 197 Cr.P.C. is a mandatory requirement for prosecuting of a public servant if the act is alleged to have been done by him while he was discharging his duties as public servant. It has been pointed out that in the present case no sanction as required has been obtained hence the charges on both the sections 384/465 IPC can fail on this ground alone. Ld. Counsel has further pointed out the contradictions in the various testimony of PW4 Rajeev Bajaj and PW2 Era Gupta. He has argued that PW4 has stated that the two passengers : 11 : namely Era Gupta and Deepak Gupta had come to his counter and when asked they had stated that they had some emergency problem at home due to which reason they deleted both the passengers whereas PW2 Era Gupta and PW3 Deepak Gupta have nowhere stated that they went before Rajeev Bajaj, hence the story given by them is incorrect. It is argued that both the witnesses wanted to save their own skin and had requested for off loading. He has further pointed out that PW10 the investigating officer had stated that he has arrested the accused outside the departure hall on the pointing out of the complainant and at that time Ct. Shyam Lal , complainant, her husband and her material Uncle Mdan Gopal Mahajan were present whereas both the witnesses have clearly stated that the accused was not arrested in their presence. Further it is stated that PW3 Deepak Gupta in his examination in chief has stated that the accused had threatened his wife that she would go to jail whereas PW2 Era Gupta has no where stated so. Ld. Counsel has further placed his reliance on the authority reported in AIR 1988 SC page 863 and has stated that the accused is not bound to say anything in his defence and it is the prosecution who has to stand on its own legs and the accused is not to explain as to why this case has been planted upon him. He has stated that Deepak Gupta was not willing to go to Mauritius and Singapore because of huge expenses and to avoid this journey he himself torn/ removed the visa page from the passport of his wife knowing that at the immigration check they will not be allowed to go in the absence of the visa. It is : 12 : stated that he did not want to disclose his intention to avoid Singapore and Mauritius tour to his newly wedded wife to keep his image and status high at the internal stage in the eyes of his wife, hence when the said defect was noticed in the passport, they somehow pleading mercy and saved their skin from prosecution for producing the passport without visa or page missing. Ld. Counsel has stated that both the witnesses have made the accused an escape goat after verifying his name from the counter and from the duty record of the immigration officer.
I have gone through the record. Both the witness Era Gupta and Deepak Gupta have corroborated each other on the material particulars. They both have stated that the accused Tariq Ali Khan was present at the immigration counter and when they reported for immigration check, the accused checked their travel documents and asked PW2 Era Gupta that her passport was not having the page on which the visa of Sangapore was affixed. They have stated that thereafter the accused started threatening Era Gupta that she would have to go to jail unless he was handed over 500 dollars which they had in their possession. Thereafter the accused took them on the counter of airlines and off loaded their luggage and left them outside the airport. Both the witness have given an explanation for delay in registration of FIR. They have stated that they return their house and inform the matter to their parents and it was thereafter that they were advised to get the case registered.
: 13 : It is apparent from the testimonies of both the witnesses that the couple was going to Singapore and when they produced their passports and travel documents for immigration check, Deepak Gupta was asked how much dollars had he on which the accused was informed that they had 500 dollars. It was thereafter that the accused told them that the passport of Era Gupta was not having the visa for Singapore and he kept the passport with them. Thereafter the accused demanded money from Deepak Gupta and threatened that they his wife would go to jail on which Deepak Gupta gave 500 dollars to the accused and they were off loaded and they were asked not to disclose the fact to anybody. The complainant Era Gupta is a graduate from Delhi University and she has specifically stated that they were accompanied to the airport by her mother in law and father in law in their own car. The explanation given by both the witnesses that after the incident they went back to their residence and inform their family members as to what had happened with them and on the advise of their family members they reported the matter to local police, seems to be plausible since any person under such circumstances would have panicked. Both the complainant and her husband also panicked on having being told that the passport of Era Gupta was not having the Singapore visa and under these circumstances it was only natural that Deepak Gupta the husband would have been shocked at the manner in which he was being threatened that his wife Era Gupta would be sent to jail for presenting the passport and he parted with 500 : 14 : dollars with the accused. It was thereafter on the advise and with the support of their family members that a complaint was made and an FIR was registered. The delay under these circumstances is not fatal to the case of the prosecution.
The testimony of both Era Gupta and Deepak Gupta find a corroboration from the statement of PW4 Rajeev Bajaj who has stated that both the said persons had come to his counter alongwith an immigration officer who told that both the passengers were not able to travel due to same emergency problem. He has stated that on being asked they had confirmed the same due to which reason the names of both the passengers were deleted. Hence, apparently the presence and availability of the accused at the spot cannot be disputed and it is also proved that he was present alongwith Era Gupta and Deepak Gupta when they had approached the Deputy Manager Rajeev Bajaj i.e. PW4 for the purposes of off loading. PW6 Jaswinder Singh has also proved that he had checked the passports, air tickets and weight of the luggage of both Era Gupta and Deepak Gupta after which they were handed over the boarding passes. He has proved that when he checked the passports the visa for Singapore and Mauritius were there on the passports of the passenger. There is no reason to doubt the testimony of PW6 once he has specifically proved that at the check in time the passports of both Era Gupta and Deepak Gupta had the visas for Singapore and Mauritius. He is an independent witness and the testimony of both PW2 and PW3 finds a corroboration from his testimony which proves that : 15 : the Singapore visa was present on the passport of Era Gupta till the time it was cleared. PW7 Madan Gopal who is the maternal uncle of the complainant is also an independent witness and has proved that he had received a call from Era Gupta regarding the incident that she was stopped at the Airport due to the missing visa page on her passport. He has specifically stated that the accused Tariq Ali Khan had come at the immigration hall and had been arrested. He has proved his signatures on the seizure memo. PW8 ASI Ishwar Singh has proved having handed over the photocopy of duty chart to the IO SI Rajesh Kumar. He has admitted that the accused was sorting out the Goshwara of the flights with the duty officer Hari Singh Yadav at 7:15 am and that he was with him and he came to deposit the Identity card between 7:30 am to 8:00 am. Merely because PW8 has stated that the Identity card had been deposited between 7:30 am to 8:00 am is not a ground to brush aside the statements of other independent witnesses as discussed herein above according to which the accused was present at the spot on duty at the time of incident. Non conducting of the judicial Test Identification Parade would also not be fatal to the case of the prosecution since the accused has been specifically named and the duty details had also been given. Further he has also been identified in the court by both the complainant and her husband.
I have gone through the various authorities relied upon by the prosecution which are as under:
1. Balbir Singh Vs. D.N. Kadian reported in AIR 1986 SC : 16 :
345.
2. Shambhu Nath Vs. State of UP reported in AIR 1997 SC 2102.
3. Haloon Ahmed Vs. State reported in 1981 AII Crl. J. 871.
4. State by Police Inspector Vs. Sri T. Venkatesh Murthi reported in 2004 (IV) AD SC1.
It has been specifically held that merely because there is no sanction, it does not affect the validity of proceedings unless court records satisfaction that such error, omission or irregularity resulted in failure of justice. Even otherwise the offence complained of is not committed under the colour of office. In this regard the authority of Chand Ahuja Vs. Gautam K. Hada (P&H) reported in 1987 (1) (RCR) 349 wherein it has been specifically held that no sanction u/s. 197 Cr.P.C. would be required if the offence has been committed under the threat of arrest. In the present case the accused had committed extortion under the threat of arresting the complainant Era Gupta, which are not the official duties of the accused for which no sanction u/s. 197 Cr.P.C. is required. In this background, I hereby hold the accused guilty for the offence u/s. 384 IPC.
However, in so far as the offence u/s. 12 is concerned no sanction u/s. 15 of Passport Act which is a mandatory requirement, has not been obtained. The accused has been wrongly charged for the offence u/s. 12 PP Act in the absence of sanction u/s. 15 Passport Act. Hence, the accused is acquitted for the offence u/s. 12 PP Act.
: 17 : Further, in respect of the offence u/s. 465 IPC, the statement of PW6 Jaswinder Singh is very clear according to which when he had checked the passport and tickets, the visa for Singapore was present on the passport of Era Gupta. However, there is no eye witness to prove that he was the accused who had himself torn the same off. It was necessary for the prosecution to have established beyond reasonable doubt that it is the accused who had himself torn or removed the visa page from the passport of Era Gupta and such a conclusion cannot be based on mere conjectures and surmises. Merely because the accused had tried to take benefit of the situation with regard to the non availability of the visa on the passport of Era Gupta cannot give rise to any presumption that he had himself committed the forgery and had torn the passport. Hence, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused in so far as the offence u/s. 465 IPC is concerned. He is acquitted for the same. The accused is convicted for the offence u/s. 384 IPC.
Case be listed for arguments on sentence for 26.2.2007.
Announced in the open court (Dr. KAMINI LAU)
Dated: 12.2.2007 ACMM: New Delhi
: 18 :
12.2.2007
Present: APP for the state.
Accused in person on bail.
Vide my separate detailed order dictated and announced in the open court, I hereby hold the accused guilty of the offence u/s. 384 IPC and convicted him accordingly. However, the accused is acquitted for the offence u/s. 465 IPC and 12 PP Act.
On request of the accused, case be listed for arguments on sentence for 26.2.2007.
ACMM: 12.2.2007 : 19 :