Bismark Bakuba Guitermbi vs State Of U.P.
2021 Latest Caselaw 11038 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 

 
Court No. - 76
 

 
Case :- CRIMINAL APPEAL No. - 7419 of 2019
 

 
Appellant :- Bismark Bakuba Guitermbi
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Anup Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ajai Tyagi,J.

1. This appeal has been preferred by the appellant-Bismark Bakuba Guitermbi against the judgment and order dated 29.8.2019, passed by learned Additional Sessions Judge, Court No.3, Maharajganj, in Sessions Trial No.15 of 2019 (State vs. Bismark Bakuba Guitermbi) arising out of Case Crime No.11 of 2018 under Sections 419, 420 IPC read with Section 14-A of the Foreigners Act, 1946 (herein after referred to as 'the Act, 1946'), in which the appellant has been awarded four years rigorous imprisonment with fine of Rs.10,000/-, six months rigorous imprisonment under Section 14-A of the Act, 1946, and the appellant was acquitted under Sections 419 and 420 IPC.

2. The brief facts of the case are that complainant-Tej Pratap Maurya (ACIO-II/Ex) posted in Immigration Office, Sonauli, District-Maharajganj, submitted a report at Police Station-Sonauli that on 13.1.2018, he was posted there with Vipin Kumar Singh. They were on night duty. In the morning at about 5:00a.m., one foreign national-Bismark Bakuba Guitermbi S/o Francosis Guitermbi R/o 67-ST Benoit Eglise, Bangui, Petevo, Central Africa, reported in the office for going to Nepal from India. At the time of checking his Passport and Visa, it was found that there was stamp affixed on Visa dated 9.12.2017 showing his arrival at Indira Gandhi International Airport, New Delhi. When the concerned authority at Airport, New Delhi was contacted to confirm his arrival, it was informed through letter No.290/RAF/A dated 13th January, 2018, and returned letter No.27/Misc/SNL/18 dated 13.1.2018 that in his UCF data, there was no record available for his arrival/departure and the stamp affixed on passport was fake. Hence, the foreign national-appellant was handed over at Police Station-Sonauli.

3. On the basis of above report of Immigration Office, Case Crime No.11 of 2018 was registered against the appellant under Sections 419, 420 IPC and Section 14 of the Act, 1946. Charge was framed by trial court under Sections 419, 420 IPC and Section 14-A of the Act, 1946. Learned trial court acquitted the appellant under Sections 419 and 420 IPC and convicted him under Section 14-A of the Foreigners Act and awarded sentence of four years RI and Rs.10,000/- fine and six months imprisonment in default of fine. Hence, this appeal.

4. Heard Shri Anup Kumar Pandey, learned counsel for appellant, Shri B.A.Khan, learned AGA for the State and perused the record.

5. At the outset, learned counsel for the appellant submitted that initially, the trial was conducted under Section 14 of the Act, 1946, but when nothing was found against the appellant, charge was amended after recording the statement of appellant under Section 313 Cr.P.C. Amended charge was levelled under Section 14-A of the Act, 1946, and the appellant was convicted in the said charge. It is also submitted by counsel for the appellant that appellant was acquitted under Sections 419, 420 IPC, but convicted under Section 14-A of the Act, 1946. It is also argued that when there was no cheating found and appellant was acquitted under Sections 419, 420 IPC, he could not have been convicted in Foreigners Act, 1946, because it is said by prosecution that the stamp affixed on his passport and visa was fake, but when appellant is acquitted for the offence of cheating, it proves that the stamp was not fake. Hence, the learned trial court has given contradictory findings and the evidence on record is not appreciated in the right perspective. It is also argued that even in entire judgment and order impugned herein, charge under Section 14-A of the Act, 1946, was not considered by trial court. Trial court has also given a finding that appellant's passport was valid. Hence, appellant was having valid passport-visa.

6. Learned counsel for the appellant also argued that Investigating Officer (PW4) before the trial court has stated in his statement that he himself did not verify arrival of appellant from New Delhi Airport; he only relied on the inquiry made by Immigration Office, Sonauli; learned trial court has also given finding that no offence of cheating was proved against the appellant. Lastly, it was submitted that appellant was awarded maximum sentence of four years out of which he has already served three years and seven months of sentence. Therefore, if appeal is dismissed, sentence may be modified as undergone.

7. No other submission or argument was raised by learned counsel for the appellant.

8. Learned AGA appearing for the State has argued that stamp of arrival on the visa of appellant was found fake. At Indira Gandhi International Airport, New Delhi, no arrival record of appellant was found. It is submitted that when there was no arrival record of appellant at New Delhi Airport, it is proved that arrival stamp affixed on visa is fake and forged. He submits that it was burden on appellant to show how he entered India, but he could not discharge his burden; appellant was found in the territory of India without valid visa/permit, therefore, offence is made out under Section 14-A of the Act, 1946, and he was rightly convicted by learned trial court. Hence, the appeal may be liable to be dismissed.

9. Prosecution case is that appellant reported at Immigration Office, Sonauli, District-Maharajganj at Indo-Nepal Border for going to Nepal from India. While checking passport and visa of the appellant, stamp of his arrival was found affixed on visa dated 9.12.2017 pertaining to New Delhi Airport. For verification of his arrival, Immigration Office Sonauli contacted Airport at New Delhi from where it was reported that there was no arrival record of the appellant at New Delhi Airport and stamp of his arrival dated 9.12.2017 was found fake.

10. First of all, it is relevant to clear the position of trial of this case as learned counsel for the appellant has argued that initially trial was conducted under Section 14 of the Act, 1946, and when nothing was found against the appellant, charge was amended under Section 14-A of the Act, 1946, even after, statement of appellant under Section 313 Cr.P.C. I find no force in the aforesaid submission of counsel for the appellant because perusal of record shows that initially trial of this case was conducted by the court of Chief Judicial Magistrate, Maharajganj, wrongly, as this case was triable exclusively by the court of sessions. After the full trial, but before delivering the judgment, learned CJM found that case was triable by court of sessions and in that event, this case was committed to the court of sessions vide order dated 19.1.2019, passed by CJM, Maharajganj. In that event, trial was conducted in court of sessions.

11. To prove its case, the prosecution has produced as many as two witnesses, namely, Tej Pratap Maurya (PW1) and Vipin Kumar Singh (PW2), who were on night duty at Immigration Office, Sonauli, when the appellant reported for going to Nepal. PW1 and PW2 were involved in checking the documents and handing over the appellant to Police Station-Sonauli.

12. PW1 has stated in his statement that for verification of arrival of appellant in India, contact was established with New Delhi Airport because stamp of arrival, affixed on the visa, was showing arrival at New Delhi. A message through fax regarding verification of the arrival of appellant was sent to New Delhi and it was reported by the Airport authority that in Unique Case File (UCF), no record of arrival/departure was found.

13. PW2 has also stated in his statement that he was also posted in Immigration Office, Sonauli, at the relevant point of time with PW1. On the visa of appellant arrival stamp dated 9.12.2017 was found affixed, so verification was made from Indira Gandhi International Airport, New Delhi. It was informed by the authorities that there was no arrival record of appellant at Airport, New Delhi.

14. Perusal of record shows that there are two most relevant and important documents, which are Ex.ka2 and Ex.ka3. Ex.ka3 is a fax message, a reply of inquiry made by Immigration Office, Sonauli. This fax message is of 13th January, 2018. Ex.ka2 is the document on which required information was written by the concerned authority of Indira Gandhi International Airport, New Delhi. In this reply, it was written "checked arrival/departure of said pax for the year 1/17 to till date. No visit has been traced. UCF is also not traced". Hence, in this reply, it is specifically mentioned that UCF is also not traced. Hence, appellant's Unique Case File (UCF) was also not there at Airport, New Delhi. Along with fax message (Ex.ka3), paper No.15kha/4 was also sent in which it is written that "ARRIVAL- No Record Found". Above documents were not rebutted by appellant in any manner. In his statement under Section 313 Cr.P.C., he has just stated that he is innocent, but nothing is said regarding the information provided through aforesaid documents. Therefore, it is clear that there was no record of appellant's arrival at New Delhi as the stamp on visa suggests. Hence, it is very well proved that stamp of arrival on visa was fake.

15. Moreover, it is not only the fact that PW1 and PW2, who were on duty at Immigration Office, Sonuali, got the verification of arrival of appellant at the time of his reporting to the office, but during investigation also, the Investigating Officer enquired about his arrival. Sub Inspector Awadhesh Narain Tiwari-Investigating Officer (PW4) has stated in his statement that verification of arrival of the appellant was made from the office of Counsellor, Passport and Visa Division Ministry of Foreign Affairs, New Delhi. It is also stated by the I.O. that date of issue of visa was 6.12.2017 and date of expiry was 5.6.2018 and then enquiry was also made from the office of Central Foreigners Intelligence Bureau, Ministry of Home Affairs, Government of India, New Delhi, by which it was informed that appellant's arrival/departure record was not traced. Therefore, on the basis of evidence on record, prosecution was succeeded to prove that as suggested by the stamp of arrival affixed on the visa of appellant, no record of appellant's arrival at New Delhi Airport was found.

16. For ready reference, Section 14-A of the Foreigners Act, 1946, provides as under:

"14A. Penalty for entry in restricted areas, etc.--Whoever--

(a) enters into any area in India, which is restricted for his entry under any order made under this Act, or any direction given in pursuance thereof, without obtaining a permit from the authority, notified by the Central Government in the Official Gazette, for this purpose or remains in such area beyond the period specified in such permit for his stay; or

(b) enters into or stays in any area in India without the valid documents required for such entry or for such stay, as the case may be, under the provisions of any order made under this Act or any direction given in pursuance thereof, shall be punished with imprisonment for a term which shall not be less than two years, but may extend to eight years and shall also be liable to fine which shall not be less than ten thousand rupees but may extend to fifty thousand rupees; 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."

17. In light of above, it is proved that no record of appellant's arrival was found at Airport New Delhi and the stamp on visa was fake, the appellant has committed the offence under Section 14-A (b) of the Foreigners Act, 1946.

18. Learned counsel for the appellant has argued that when appellant was acquitted under Sections 419, 420 IPC, how he could have been convicted under Section 14-A of the Act, 1946. I find no force in the submission of counsel for the appellant because Section 419 IPC provides for punishment of cheating by personation and cheating by personation is defined under Section 416 IPC as under:

"416. Cheating by personation.--

A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.

Explanation.--The offence is committed whether the individual personated is a real or imaginary person. Illustration

(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation.

(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation."

19. Section 420 IPC, for punishment of cheating and dishonestly inducing delivery of property, is defined as under:

"420. Cheating and dishonestly inducing delivery of property.--

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

20. In the case at hand, there was no cheating by personation and there was no cheating and dishonestly inducing of delivery of property by appellant. Hence, the learned trial court has rightly acquitted the appellant against the charges levelled under Sections 419 and 420 IPC, but it is not shown that if appellant had been acquitted for the offence under Sections 419 and 420 IPC, no offence is made out under Section 14-A of the Act, 1946, against him. With the evidence on record, it is proved that since there was no record of arrival of appellant in India, as discussed earlier, it is proved that appellant entered India without valid documents required for such entry.

21. Hence, learned trial court has appreciated the evidence in right perspective and rightly convicted and sentenced the appellant for the offence under Section 14-A of the Foreigners Act, 1946. There is no scope for making any interference in the impugned judgment and order passed by trial court and appeal is liable to be dismissed.

22. Accordingly, the appeal is dismissed.

(Ajai Tyagi, J.)

Order Date :- 01.09.2021

LN Tripathi