The High Court of Calcutta, while dismissing a criminal revision preferred against the order dated 16.09.2023 and 20.09.2023 passed by Learned ACJM u/s 468/471 of IPC read with Section 14A/14B of Foreigners Act 1946, held that the verification report regarding the genuineness of the Nepali Passport of the present petitioner cannot be enquired into on the view of Section 8 and Section 9 of the Foreigners Act, 1946, wherein burden of proof is upon the accused against whom the charge has been leveled as a Foreigner.
Brief Facts:
The present petitioner, being a Chinese citizen, was allegedly trying to enter India with a fake Nepali passport. A case u/s 468/471 of IPC read with 14A/14B of the Foreigners Act was started. The petitioner was arrested and taken into custody. It is the case of the petitioner that the investigating agency submitted a charge sheet on 15.09.2023 against the present petitioner on the above-mentioned offenses and prayed for filing a supplementary charge sheet. The charge sheet was complete. Thus, the present petitioner applied for statutory rights of default bail u/s 167(2) of Cr.P.C. The Learned Magistrate rejected the prayer of default bail.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the Learned Magistrate illegally passed the order of taking cognizance on the basis of the incomplete charge sheet. He argued that the order passed by the Learned Magistrate was illegal and bad in the eye of the law. The charge sheet did not contain the verification report regarding the genuineness of the Nepali passport of the present petitioner.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the investigation disclosed that the Nepali passport was suspected to be forged. He argued that according to the provisions of 8/9 of the Foreigners Act, the onus lies upon the accused to prove that he is a citizen of a particular country. He contended that the charge sheet submitted by the police cannot be said to be a document submitted by the police only to deny the default bail of the present petitioner.
Observations of the court:
The court noted that during the course of the investigation, the police collected several documents and materials based on which the charge sheet was submitted against the petitioner.
The Court observed that once the charge sheet has been submitted the question of default bail cannot arise but the accused may ask for regular bail on the basis of the merits of each case. The Court said that the investigating agency specifically followed the requirements of Section 173 CrPC in filing the charge sheet. Mere filing a supplementary charge sheet on the basis of the report of FPB, Delhi, does not make the final report of the police finally submitted on 15.09.2023 to be a document with intrinsic hollowness. The verification report regarding the genuineness of the Nepali Passport of the present petitioner may be a good ground on behalf of the present petitioner in the trial but at this juncture, the same fact cannot be enquired into on the view of Section 8 and Section 9 of the Foreigners Act, 1946, wherein burden of proof is upon the accused against whom the charge has been leveled as a Foreigner.
The decision of the Court:
The Calcutta High Court, dismissing the petition, held that there was no illegality or irregularity in the impugned order passed by the Learned Magistrate.
Case Title: Peng Yongxin v State of West Bengal
Coram: Hon’ble Justice Subhendu Samanta
Case No.: CRR 39 of 2024
Advocate for the Petitioner: Mr. Ayan Bhattacharya
Advocate for the Respondent: Mr. Aniruddha Biswas
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