Smt. Fatma vs State Of U.P.
2017 Latest Caselaw 1718 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 7049 of 2011
 

 
Appellant :- Smt. Fatma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anil Kumar Ojha
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Sri Gyanendra Prakash Srivastava, learned Amicus curiae for the appellant and Sri Saghir Ahmad, learned AGA for the State.

This criminal appeal has been preferred by the appellant Smt. Fatma against the judgment and order dated 23.11.2011 passed by Additional District and Sessions Judge/ T-Court No.1, Ghaziabad in S.T. No. 1329 of 2010, State Vs. Fatma connected with S.T. No. 1/11, State Vs. Mohd. Salim by which the appellant has been convicted and sentenced to three years rigorous imprisonment and a fine of Rs. 5000/- and in default of payment of fine three months additional imprisonment under Section 14 of the Foreigners Act and three months imprisonment under Section 3/12 Passport Act. Both the sentences were directed to run concurrently.

Briefly stated the facts of this case are that PW-1 Sitaram Rohile gave a written complaint at P.S. Loni, District Ghaziabad on 09.10.2009 at about 11.55 a.m. stating therein that while PW-1 S.I. LIU Sitaram Rohile along with PW-2 Constable Tejveer Singh were going to Mohalla Nasbandi Colony, Qasba Loni, he received a secret information from police informer that two Bangladeshi nationals one female and one male were standing in front of Shiv temple. Believing the information tendered by the police informer to the PW-1 to be true, he after walking few paces noticed that one male and one female were standing standing on the road infront of Shiv temple. When PW-1 and PW-2 quizzed them the lady disclosed that her name was Smt. Fatma wife of Rahim while the male disclosed his name as Mohd. Salim son of late Mohd. Aziz. Both of them stated that their permanent address was village and P.S. Moral Gauz, District Bagrahat, Bangladesh. They were living surreptitiously in Nasbandi Colony, Loni for the last 15 years. When the two Bangladeshi nationals were required to produce their passports and visas, they failed to furnish any valid document and reiterated that they had come from Bangladesh and were living in India surreptitiously. Smt Fatma further told PW-1 that her husband had been arrested by Delhi police and deported to Bangladesh and she had gone to Delhi to meet him. Both the accused were informed that had committed offences under Section 14 of the Foreigners Act and Section 3/12 of the Passport Act. On the basis of the written report Ext.Ka-1 two cases, namely, case crime no. 1786 of 2009 and 1787 of 2009, State Vs. Smt. Fatma and State Vs. Mohd. Salim respectively were registered at P.S. Loni, check FIR, Ext.Ka-5, relevant G.D.entry vide Rapat No. 23 at 11.55 hours were prepared by PW-6 Constable Satendra Singh. The matter was investigated by PW-5 S.I. Braj Lal Bhargava who during the course of the investigation recorded the statements of the witnesses under Section 161 Cr.P.C., inspected the place of incident and prepared its site plan Ext.Ka-2 and after completing the investigation submitted two separate charge sheets against the appellant Smt. Fatma, Rahim and accused Salim under Section 3/12 of the Passport Act and Section 14 of the Foreigners Act before the C.J.M., Noida. Since the offences mentioned in the charge sheet were triable exclusively by the Court of Sessions, C.J.M., Noida committed the case for trial of the accused to the Sessions Judge, Noida, where it was registered as S.T.No. 1349 of 2010 and connected with S.T. No.1/11 ( State Vs. Mohd. Salim). Both the sessions trial were made over for trial to the court of Additional District & Sessions Judge/T Court No.-1,Ghaziabad where both the Sessions Trial were connected as they arose from the same incident. S.T. No. 1349 of 2010 was made the leading case.

Learned Additional District & Sessions Judge/T Court No.1, Ghaziabad on the basis of the material on record and after hearing the prosecution and the accused on the point of charge framed charged against the appellant under Section 14 of the Foreigners Act and Section 3/12 of the Passport Act.

The prosecution in order to prove its case examined PW-1- SI LIU Sitaram Rohile, PW-2- Constable Tejvir Singh, PW-3- Constable Raju son of Tara, PW-4- Fajjan son of Faiyaaz, PW-5- SI- Braj Lal Bhargava and PW-6- Constable 2176 Satendra Singh.

The accused appellant Smt. Fatma in her statement recorded under Section 313 Cr.P.C. alleged that she was resident of Haldia while co-accused Salim resided in Calcutta, she further denied the prosecution case.

After considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record convicted and sentenced the accused Smt. Fatma to three years rigorous imprisonment and a fine of Rs. 5000/- and in default of payment of fine three months additional imprisonment under Section 14 of the Foreigners Act and three months imprisonment under Section 3/12 Passport Act.

Hence this appeal.

Sri Gyanendra Prakash Srivastava, amicus curiae appearing for the appellant submitted that the learned trial judge committed a patent error of law in holding the appellant to be Bangladesh national and convicting her by illegally putting the burden of proving the fact that she was an Indian national on the appellant. He further submitted that the documentary evidence adduced by the accused appellant before the trial court for proving that she was an Indian citizen has been illegally discarded by the trial court. He lastly submitted that neither the recorded conviction of the appellant nor the sentence awarded to her can be maintained and are liable to be set aside.

Per contra Sri Saghir Ahmad, learned AGA submitted that in view of the Section 9 of the Foreigners Act the burden of proving that the appellant was an Indian national lay on her which she miserably failed to discharge. The recorded conviction of the appellant Fatma is based upon cogent evidence and the sentences awarded to her are based upon relevant considerations which warrant no interference by this Court. This appeal lacks merit and is, accordingly, dismissed.

We have heard Sri Gyanendra Prakash Srivastava, learned Amicus curiae and Sri Saghir Ahmad learned AGA for the State and perused the entire lower court record.

Record shows that appellant Fatma was arrested by PW-1 S.I. Sitaram Rohile on 11.12.2010 from a place in front of Shiv temple in Mohalla Nasbandi Colony of Loni, Ghaziabad pursuant to the secret information received by him from the police informer that two Bangladeshi nationals were standing in front of Shiv temple. Upon being quizzed by PW-1 on his reaching there the appellant disclosed that she was a resident of village and P.S. Moral Gauz, District Bagrahat, Bangladesh. On being required by P.W.-1 to produce her passport and visa she declined and stated that she neither possessed a passport nor any visa. She further stated that she had went to Delhi to meet her husband Rahim who had been arrested by Delhi police and deported to Bangladesh. On the basis of the written report Ext.Ka-1 lodged by PW-1 Sitaram Rohile case crime no. 1786 of 2009 was registered against the appellant Fatma under the aforesaid offences.

Before I proceed to examine the respective contentions of the learned counsel for the parties, it would be useful to extract Sections 2, 3 8,9, 14 of the Foreigners Act and Section 3/12 of the Passport Act hereunder:-

"2. Definitions.--In this Act,-- 1[

(a) "foreigner" means a person who is not a citizen of India;] 2[***]

(b) "prescribed" means prescribed by orders made under this Act;

(c) "specified" means specified by direction of a prescribed authority.

3. Power to make orders.--

(1) The Central Government may by order1 make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 2[India] or, their departure therefrom or their presence or continued presence therein.

(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner--

(a) shall not enter 2[India], or shall enter 2[India] only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;

(b) shall not depart from 2[India], or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

(c) shall not remain in 2[India], or in any prescribed area therein; 3[(cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal;]

(d) shall remove himself to, and remain in, such area in 2[India] as may be prescribed; tc" (d) shall remove himself to, and remain in, such area in 1[India] as may be prescribed;"

(e) shall comply with such conditions as may be prescribed or specified-- tc" (e) shall comply with such conditions as may be prescribed or specified--"

(i) requiring him to reside in a particular place; tc" (i) requiring him to reside in a particular place;"

(ii) imposing any restrictions on his movements; tc" (ii) imposing any restrictions on his movements;"

(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified; tc" (iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;"

(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified; tc" (iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;"

(v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified; tc" (v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;"

(vi) prohibiting him from association with persons of a prescribed or specified description; tc" (vi) prohibiting him from association with persons of a prescribed or specified description;"

(vii) prohibiting him from engaging in activities of a prescribed or specified description; tc" (vii) prohibiting him from engaging in activities of a prescribed or specified description;"

(viii) prohibiting him from using or possessing prescribed or specified articles; tc" (viii) prohibiting him from using or possessing prescribed or specified articles;"

(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified; tc" (ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;"

(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions; tc" (f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;" 4[(g) shall be arrested and detained or confined;] and may make provision 5[for any matter which is to be or may be prescribed and] for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act. 5[(3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) 6[or clause (f)] of sub-section (2).]

1[3A. Power to exempt citizens of Commonwealth countries and other persons from application of Act in certain cases.--

(1) The Central Government may, by order declare that all or any of the provisions of this Act or of any order made thereunder shall not apply, or shall apply only in such circumstances or with such exceptions or modifications or subject to such conditions as may be specified in the order, to or in relation to--

(a) the citizens of any such Commonwealth country as may be so specified; or tc" (a) the citizens of any such Commonwealth country as may be so specified; or"

(b) any other individual foreigner or class or description of foreigner. tc" (b) any other individual foreigner or class or description of foreigner."

(2) A copy of every order made under this section shall be placed on the table of both Houses of Parliament as soon as may be after it is made.]

8. Determination of nationality.--

(1) When a foreigner is recognized as a national by the law of more than one foreign country or where for any reason it is uncertain what nationality if any is to be ascribed to a foreigner, that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected: Provided that where a foreigner acquired a nationality by birth, he shall, except where the Central Government so directs either generally or in a particular case, be deemed to retain that nationality unless he proves to the satisfaction of the said authority that he has subsequently acquired by naturalization or otherwise some other nationality and still recognized as entitled to protection by the Government of the country whose nationality he has so acquired.

(2) A decision as to nationality given under sub-section (1) shall be final and shall not be called in question in any Court: Provided that the Central Government, either of its own motion or on an application by the foreigner concerned, may revise any such decision."

Section 9. Burden of proof.--If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.

"Section-14. Penalty for contravention of provisions of the Act, etc.--Whoever--

(a) remains in any area in India for a period exceeding the period for which the visa was issued to him; tc" (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 thereunder; tc" (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 thereunder;"

(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, tc" (c) contravenes the provisions of this Act or of any order made thereunder 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 the convicting Court why such penalty should not be paid by him."

Section 3 in The Passports Act, 1967

Passport or travel document for departure from India.--No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document. Explanation.--For the purposes of this section,--

(a) "passport" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;

(b) "travel document" includes a travel document which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed.

Section 12 in The Passports Act, 1967

12. Offences and penalties.--

(1) Whoever--

(a) contravenes the provisions of section 3; or

(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or

(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or

(d) knowingly uses a passport or travel document issued to another person; or

(e) knowingly allows another person to use a passport or travel document issued to him; shall be punishable with imprisonment for a term which may extend to 9 [two years or with fine which may extend to five thousand rupees] or with both.

[(1A) Whoever, not being a citizen of India,--

(a) makes an application for a passport or obtains a passport by suppressing information about his nationality, or

(b) holds a forged passport or any travel document, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees.]

(2) Whoever abets any offence punishable under 11 [sub-section (1) or sub-section (1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence.

(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.

(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence."

Section 2 of the Foreigners Act defines a foreigners as a person who is not a citizen of India. Section 8 of the provides that if person is recognized as a national by the law of more than one foreign country or where for any reason it is uncertain what nationality if any is to be ascribed to a foreigner, that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy if he is of uncertain nationality, of the country with which he was last so connected. Section 8 further stipulates that where a foreigner acquired a nationality by birth, he shall except where the Central Govt. so directs either generally or in a particular case, be deemed to retain that nationality unless he proves to the satisfaction of the said authority that he has subsequently acquired by naturalization or otherwise some other nationality and still recognized as entitled to protection by the Government of the country whose nationality he has so acquired.

Section 9 of the Act which deals with the burden of proof provides that If in a case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.

There is no dispute amongst the learned counsel for the parties that in this case Section 9 applies squarely.

The question which next arises for consideration by this Court is that whether in view of the provisions of Section 9 of the Foreigners Act, it can be held that learned trial judge committed any illegality in placing burden on the accused appellant Smt. Fatma to prove that she was an Indian national.

Section 9 of the Foreigners Act 1946 carves out an exception to the general provisions relating to burden of proof enumerated in the Indian Evidence Act 1872 and no error can be found with the view of the trial court that the burden of proving the fact that the appellant Fatma was a Indian national lay upon her and not on the prosecution.

The next question which arises in this appeal is that whether the evidence adduced by the accused appellant Smt. Fatma to establish that she was an Indian national has been discarded by the learned trial Judge on extraneous considerations.

Record shows that in order to prove that the accused appellant was an Indian national she had brought on record the following documents:-

1- Photostat copy of a document showing that at her behest criminal case was registered against one Faizan on the application moved by appellant Smt. Fatma.

2- Photostat copy identity card of Rahim issued by Election Commission of India.

3- Photostat copy of transfer certificate.

4- Photostat copy of Nikahnama

5- Photostat copy of voter identity card of Smt. Fatma issued by Election Commission of India.

Learned trial judge discarded the documents which were brought on record by the accused appellant for proving her that she was an Indian national on the ground that the same were photostat copies and hence inadmissible in evidence. Learned trial judge also held that it was not proved from the perusal of the transfer certificate and the Nikahnama that the accused-appellant Smt. Fatma, that she was a Indian national.

As far as the voter identity allegedly issued by the Election Commission of India to the accused appellant Fatma is concerned the same on verification was not found to have been issued by the office of the Election Commission as is evident from the report of the S.D.O.,Ghaziabad paper no. 16ka-1 and 16ka-3 dated 25.10.11. More over the learned trial judge also noted that accused-appellant had not filed the original voter identity card and the photo stat copy of the same which was brought on record was inadmissible in evidence.

A Division Bench of this Court in paragraph 17 of its judgement rendered in the case of Niaz Khan Vs. State of U.P. and others, 1973 Cr.L.J.1344 while dealing with an identical issue has observed as hereunder:-

"17. Sri Asif Ansari vehemently urged that the burden was on the detaining authority to justify the detention of a detenu who applied for habeas corpus. In our opinion the instant case would be governed by the special provisions of the Foreigners Act, 1946 and the onus is on the petitioner to show that he is a citizen of India. We have already referred to the definition of 'foreigner' as a person who is not a citizen of India. We have already seen that prima fade the petitioner has failed to establish that he satisfied the conditions laid down by Article 5 of the Constitution so as to be deemed to be an Indian citizen at the commencement of the Constitution- Although he claims to have been in India since 1946. Yet no evidence such as letters, electoral roll, ration card etc. was adduced by him to prove his stay during the period. Since his case does not fall under Article 5 of the Constitution he is not a citizen of India and is a foreigner. Section 3 of the Foreigners Act gives wide powers to the Central Government for prohibiting, regulating or res- tricting the enter of foreigners into India or their departure therefrom or their presence or continued presence therein. Sub-section (2) (g) of the same Section adds that the order may provide that the foreigner shall be arrested and detained or confined. The Foreigners (Internment) Order, 1962 was issued under Sections 3, 4 and 8 of the Foreigners Act. In such circumstances Section 9 of the Foreigners Act is conclusive on the Question of onus of proof. It provides:

"9. If in any case not falling under Section 8 ant question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act. 1872. lie upon such person".

The present case certainly does not fall under Section 8 and therefore the burden lay on the petitioner to prove that he was not a foreigner. He could discharge this burden by proving that he was an Indian Citizen but he has failed to do so. Paragraph 3 of the Foreigners (Internment) Order, 1962 makes it clear that Para. 5 thereof applies to any national of Pakistan and other foreigner who fulfills certain conditions. We have already held that the word 'foreigner' occurring in paragraph 3 of the Order is used in a comprehensive sense and includes any national of Pakistan. Since the petitioner has been unable to show that he was not a foreigner, the Civil Authority was competent to arrest him in the exercise of its Power under paragraph 5 of the Order- The same opinion was expressed by Gaiendraaadkar C. J. in Abd,ul Sattar v. State of Guiarat . In Paragraph 10 of the reports it was observed:

"There is one more point which deserves to be mentioned before dealing with the merits of the case. The appellant is being prosecuted under Section 14 of the Foreigners Act, 1946 (XXXI of 1946). In determining the question as to whether he is a foreigner within the meaning of the said Act or not, Section 9 of the said Act will have to be borne in mind. Section 9 applies to all cases under the Act, which do not fall under Section 8 and this case does not fall under Section 8 and so Section 9 is relevant. Under this section the legislature has placed the burden of proof on a person who is accused of an offence punishable under Section 14- This section provides, inter alia, that where any question arises with reference to the said Act, or any order made, or direction given thereunder whether any person is or is not a foreigner, the onus of proving that such a person is not a foreigner, shall notwithstanding anything contained in the Indian Evidence Act, lie upon such person, so that in the present Proceedings in deciding the question as to whether the appellant was an Indian Citizen within the meaning of Article 5 the onus of Proof will have to be placed on the appellant to show that he was domiciled in the territory of India on January 26, 1950 and that he satisfied one or the three conditions prescribed by Cls. (a), (b) and (c) of the said Article. It is on this basis that the trial of the appellant will have to proceed."

I do not find that the trial trial judge committed any illegality or infirmity in discarding the documentary evidence adduced by the appellant Fatma for proving that she was an Indian national. Thus no fault can be found with her recorded conviction under Section 14 of the Foreigners Act.

Coming to the appellant's conviction under Section 3/12 of the Passport Act since admittedly appellant failed to prove that she posses a valid passport or transfer document notwithstanding her being a Bangladeshi national her conviction under Section 3/12 of the Passport Act recorded by the trial judge is liable to be confirmed.

In view of the foregoing discussions, I do not find that the learned trial judge committed any error, illegality or infirmity in convicting the appellants under Section 14 of the Foreigners Act and Section 3/12 Passport Act and awarding the aforesaid sentences to them.

This appeal lacks merit and is accordingly dismissed. The recorded conviction and the sentence awarded to the appellant stand confirmed. Appellant Fatma is on bail. Her bail bonds are be cancelled and her sureties discharged. She shall be taken into custody forthwith for serving out the remaining part of her sentence.

Gyanendra Prakash, amicus Curiae shall be paid a sum of Rs. 7,000/- towards his remunerations.

Order Date :- 15.6.2017

Abhishek Sri.