Hedlu Barman @ Swapan Barman vs The State Of West Bengal
2021 Latest Caselaw 6370 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                           Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                       C.R.A. 995 of 2013

                Hedlu Barman @ Swapan Barman
                              Vs.
                  The State of West Bengal


Amicus Curiae          :     Mr. Niladri Sekhar Ghosh, Adv.,
                             Md. Selim Malik, Adv.,
                             Ms. Sompurna Chatterjee, Adv.

For the State          :     Mr. N. P. Agarwala, Adv.,
                             Mrs. S. Patel, Adv.


Heard & Judgment on    :     16.12.2021.


Bibek Chaudhuri, J.

This is an appeal filed by the convict, namely, Hedlu Barman @

Swapan Barman assailing the judgment and order of conviction and

sentence passed by the learned Additional Sessions Judge, Fast Track,

1st Court at Raiganj, Uttar Dinajpur in Sessions Case No. 80/2013

corresponding to Sessions Trial No. 41/2013 on 3 rd October, 2013.

The appellant was convicted under Section 14 of the Foreigners Act

and sentenced to suffer simple imprisonment for three years and also

to pay fine of Rs.20,000/-(Rupees Twenty Thousand), in default, to

suffer simple imprisonment for another one year for committing

offence punishable under Section 14C of the Foreigners Act, 1946.

Kaliaganj Police Station Case No. 329/2012 was registered on

11th November, 2012 under Section 14A and 14B of the Foreigners Act

against four accused persons, namely, Sajahan, Ahasan Ali, Rabiul

Islam and Karimul on the basis of a suo motu complaint filed by one

Sub-Inspector, Bablu Shil stated, inter alia, that the above-named

persons were Bangladeshi nationals and they crossed the international

boundary of Bangladesh and India and took shelter in the house of

the appellant. The said arrested four persons had no valid document

to enter into the Indian territory and the appellant helped them to

enter into the Indian territory and illegally gave shelter to them to his

house.

While the above-named accused persons faced trial under

Section 14A and 14B of the Foreigners Act, the appellant faced

separate trial under Section 14C of the Foreigners Act.

After filing of the charge-sheet the case was transferred to the

1st Fast Track Court of the learned Additional Sessions Judge for trial.

The above-named Bangladeshi nationals pleaded guilty for committing

the offence under Section 14A(b) of the Foreigners Act and they were

convicted and sentenced accordingly. It is submitted by the learned

advocate for the State that they were also repatriated to their own

country. The present appellant pleaded not guilty and accordingly, he

faced trial.

The learned Trial Judge framed the following points for

consideration :-

(i) Whether the appellant gave shelter to four Bangladeshi

nationals who entered into Indian territory without

having any valid document?

(ii) Whether the prosecution was able to prove the case

against the appellant beyond any reasonable doubt.

(iii) Whether the appellant is liable to be convicted.

It is already recorded that the appellant was convicted and

sentenced for committing offence under Section 14C of the Foreigners

Act.

Section 14C of the Foreigners Act runs thus:-

"14-C. Penalty for abetment. - Whoever abets any offence

punishable under Section 14 or Section 14-A or Section 14-B shall, if

the act abetted is committed in consequence of the abetment, be

punished with the punishment provided for the offence.

Explanation. - For the purposes of this section, -

(i) an act or offence is said to be committed in

consequence of the abetment, when it is committed in

consequence of the instigation, or in pursuance of the

conspiracy, or with the aid which constitutes the

offence;

(ii) the expression "abetment" shall have the same

meaning as assigned to it under Section 107 of the

Indian Penal Code (45 of 1860)".

Thus, Section 14C deals with the penalty for abetment of any

offence punishable under Section 14 or Section 14A or Section 14B.

Explanation II of Section 14C states that the expression 'abetment'

shall have the same meaning as assigned to it under Section 107 of

the Indian Penal Code.

Section 107 of the Indian Penal Code states that a person abets

the doing of a thing, who - First. - Instigates any person to do that

thing; or Secondly. - Engages with one or more other person or

persons in any conspiracy for the doing of that thing, if an act or

illegal omission takes place in pursuance of that conspiracy, and in

order to the doing of that thing; or Thirdly. - Intentionally aids, by

any act or illegal omission, the doing of that thing.

In the instant case only evidence that came forward against the

appellant is that he gave shelter to four numbers of Bangladeshi

nationals in his house. There is absolutely no evidence that the

appellant instigated the said four Bangladeshi nationals to cross the

international border between Bangladesh and India and entered into

this country without any valid document. There is also no evidence

that the appellant conspired with the other accused persons for

commission of the offence or that he knowingly and intentionally

aided the said four Bangladeshi nationals to commit offence under

Section 14A(b) of the Foreigners Act. Moreover, in curse of evidence,

P.W. 1, Bablu Shil who arrested four numbers of Bangladeshi

nationals stated that he personally did not collect any document to

prove that the house wherefrom Bangladeshi nationals were

apprehended was owned by the appellant.

No local people was examined to identify the place wherefrom

Bangladeshi nationals were arrested as that of the house of the

appellant.

Even assuming that the appellant gave shelter to the said four

persons to stay in his house, such act does not ipso facto constitute

an offence under Section 14C of the Foreigners Act.

For the reasons stated above, this Court is of the view that the

learned Trial Judge misinterpreted the penal provision of Section 14C

of the Foreigners Act and wrongly recorded conviction of the

appellant.

Accordingly, the impugned judgment and order of conviction

and sentence is liable to be set aside.

Thus, the appeal is allowed on contest.

The appellant be discharged from bail bond at once.

Let a copy of this judgment be sent to the learned Trial Court

along with the lower Court record.

The parties are at liberty to act on the server copy of this

judgment.

Urgent photostat certified copy of this judgment, if applied for,

be given to the learned advocates for the parties on usual

undertakings.

(Bibek Chaudhuri, J.)

Srimanta/Mithun A.Rs. (Court)