Calcutta High Court (Appellete Side)

@ Rohini Tabassum @ Sneha vs The State Of West Bengal on 12 December, 2022

             IN THE HIGH COURT AT CALCUTTA
               (CRIMINAL APPELLATE JURISDICTION)


   PRESENT:
   THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY

                                   CRA 752 of 2019
                                   CRAN 1 of 2020
                                   CRAN 2 of 2020
                                   CRAN 3 of 2020

                          FARJANA HASIN @ FARZANA HASIN
                            @ ROHINI TABASSUM @ SNEHA
                                        VS.
                            THE STATE OF WEST BENGAL


   For the Appellant                 : Mr. Sabyasachi Banerjee, Adv.
                                       Mr. Nigam Ashish Chakraborty, Adv.
                                       Mr. Agniva Banerjee, Adv.

   For the Respondent                : Mr. Avishek Sinha, Adv.

   Hearing concluded on              : 17th November, 2022

   Judgement on                      : 12th December, 2022

Siddhartha Roy Chowdhury, J.:

1. "The time then has arrived, Glaucon, when, like huntsmen, we

should surround the cover, and look sharp that justice does not slip

away, and pass out of sight and get lost; ....." "The Republic"

2. Md. Wajiul Haque, A.S.I. of police, on 7th February, 2015 brought

one girl of 20 years under arrest from Hili ICP area. Her name,

according to A.S.I. Haque was Rohini Tabassum @ Sneha, a citizen of

Bangladesh. Name of her father, as disclosed by the girl is Nur

Mahammad of Kasipara, Agarpara, Shibgunj, District Nababgunj,

Bangladesh. As the girl failed to produce any valid document to justify

her presence in the Indian Territory, she was arrested and her

belongings including a sum of Rs. 2400/- (INR) was seized. Such

information of Md. Haque, the A.S.I of Police, gave birth to Hili P.S.

Case No. 22 of 2015 under Section 14A of the Foreigners' Act.

3. After investigation, police submitted charge sheet and on 9th July,

2015 learned Additional District Judge, Fast Track Court, Balurghat,

framed charge under Section 14A(b) of the Foreigners Act. Accused

person stood trial having claimed her innocence.

4. Learned Trial Court having considered the oral testimony of four

witnesses examined by the prosecution and six witnesses examined by

and on behalf of the accused persons, held the accused guilty to the

charge under Section 14A(b) of the Foreigners Act and sentenced her to

suffer rigorous imprisonment for 4 years and to pay fine of R. 25,000/-

with a default clause.

5. Mr. Sabyasachi Banerjee, learned Counsel for the appellant assails

the judgement impugned being written with a closed mind. The

accused is a girl of 20 years, Indian by birth, residing with her parents

at Howrah. She reiterated her claim again and again when she was

interrogated prior to her arrest and subsequent thereto.

P.W. 2, Kartick Saha and P.W. 3, Arup Rajbhar stated that at the

time of interrogation, the accused told the police that she is a resident

of Howrah. Even P.W. 1 stated that father of the accused came to Hili

Police Station on 4th March, 2015. P.W. 4, S.I. Sudip Kumar Saha, the

Investigating Officer stated that he submitted a report, disclosing that

the accused person is a resident of village Khajurtti, Police Station

Bagnan, District Howrah. But he did not submit any supplementary

charge sheet in the final form.

6. Having taken note of such evidence according to Mr. Banerjee,

learned Trial Judge had no reason to record an order of conviction.

Father of the accused person appeared before the learned Trial Judge

and adduced evidence. But absence of her mother on the witness box

led the learned Trial Judge to disbelieve that parents of the accused

person are Indian citizens. Though referring to the provisions of

Citizenship (Amendment) Act learned Trial Judge has said a person

born on or after 1st July, 1987 but before commencement of

Citizenship (Amendment) Act, 2003 and either of whose parents is a

citizen of India at the time of birth is a citizen of India. When father of

the accused person came with the copy of general diary, registered

after his daughter went missing, learned Trial Judge had no reason to

hold that absence of any whisper about her mother, disqualifies the

accused person to be considered as citizen of India. Learned Trial

Court, since moved with a closed mind, she failed to consider the

evidence in its proper perspective. According to Mr. Banerjee the

judgement is but a manifestation of misreading of evidence, resulting

into miscarriage of justice.

7. Mr. Avisek Sinha, learned Counsel representing the State, with all

fairness expresses his inability to support the judgement impugned.

8. Since the accused claimed to be a citizen of India and not a

foreigner, Section 9 of the Foreigners Act, 1946 saddles her with the

burden to prove what she asserts, as if such fact is within her special

knowledge. In this regard we can use the judgemet pronounced in the

case of SIRAJUL HOQUE VS. THE STATE OF ASSAM & ORS.

reported in (2019) 5 SCC 534 wherein His Lordship Rohinton Fali

Nariman was pleased to hold:

"2. The present appeal raises an issue as to whether the Appellant herein has been declared to be a foreigner incorrectly. [By the Foreigner's Tribunal judgment dated 19.01.2017, after referring to some of the documents produced by the Appellant, and after finding that there was a discrepancy in the name of the grandfather and the fact that the grandfather and the father later lived in different villages, the Tribunal declared the Appellant to be a foreigner. The High Court dismissed the writ petition filed against the same judgment stating:

Having said that we may look into the written statement filed by the Petitioner before the Tribunal.] In a proceeding before the Foreigners' Tribunal where the citizenship status of the proceedee is being questioned, that too, by the State, the proceedee must disclose all material facts within his special knowledge relevant for establishing his citizenship at the first instance itself i.e., in the written statement. In other words, he must be able to plead about his identity as a citizen of India. This would be as per the requirement of Section 9 of the Foreigners' Act, 1946, which is in pari materia to the provision of Section 106 of the Evidence Act, 1872."

9. Section 9 Foreigners Act envisages:-

"Section 9 in The Foreigners Act, 1946

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."

10. From the attending facts of this case, it is admitted that the

accused person, a young lady was found near Hili ICP. She was

rounded up by police and prosecuted under the Foreigners' Act, 1946.

11. From the oral testimony of P.W. 2 and P.W. 3 it appears that

during interrogation by police the accused person stated that her

residence is at Bagnan, Howrah, yet she was arrested and prosecuted

as "Foreigner".

12. In order to discharge such burden accused person adduced

evidence as D.W. 1 and stated she is a resident of Khajurtti under P.S.

Bagnana. She came to visit Hili from Bagnan. Her parents are alive and

they are citizens of India. Such statement on oath goes unchallenged

as there is no cross-examination on such claim of D.W. 1 on oath.

13. Munshi Md. Saiful Ambia as D.W. 2 stated that on 6th February,

2005 his daughter Farjana went missing. He informed Bagnan P.S. and

G.D. Entry No. 8 of 2015 was registered; his daughter is citizen of India

by birth. D.W. 2 was not cross-examined on this statement.

14. Bipul Maji as D.W. 3 produced a Register of Bagnan Adarsha High

School, containing the information under Serial No. 50 that indicates

Farjana Hasin appeared in Madhyamik examination in 2009. Her roll

number was F08692G and Pass Certificate No was 241457. The entries

are marked as Exhibit-D and E.

15. Sahana Begum as P.W. 4 produced Birth Certificate of Farjana

Hasin issued on 27th January, 2014 which is admitted as Exhibit-F.

Farjana was bond in 20th March, 1993.

16. Ashit Kumar Biswas as Joint B.D.O., Bagnan-I as P.W. 5 produced

the computer voter list generated containing the name of Farjana

Hasin at Serial No. 696 as Exhibit- I/1. It corresponds to voter identity

card Exhibit-B. Learned Trial Judge put question to P.W. 5 touching

the requirement of certificate under Section 65B of the Evidence Act.

17. Bhaskar Mondal, Inspector, Food and Supply, as P.W. 6 produced

Ration Card Register and proved that Farzina Hasin and Munshi Md.

Saiful Ambia, admitted J/1 and K/1.

18. As I have pointed out claim of D.W. 1 the accused person that she

is a resident of Bagnan, and her parents are Indian citizens goes

uncontroverted. There was no cross examination by prosecution. So is

the testimony of D.W. 2 that his daughter is a citizen by birth. It goes

without saying that failure to cross examinee any witness, on material

particulars amounts to admission and we can rely upon the judgement

of Hon'ble Supreme court in this regard, pronounced in State of U.P.

vs. Man Singh reported in 2002 AIR SCW 4458.

19. Division Bench of this Hon'ble Court in A.E.G. CARAPIET VS A.Y.

DERDERIAN reported in ILR (1961) (1) Cal 715 : AIR 1961 Cal 359

held:-

"Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-

examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. ............ It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety."

Therefore, absence of cross-examination of D.W. 1 and D.W. 2

about the citizenship of the accused person, as asserted by them

should be considered to have been accepted by the State.

20. D.W. 1 is getting support from rest of the defence witnesses and

three out of four such witnesses are public servants. D.W. 5 is Joint

B.D.O., Bagnan, Howrah. The oral testimony of those witnesses

unerringly indicate the fact that Farjana Hasin is a citizen of India. Her

parents are citizens of India. She studied at Bagnan passed Secondary

Examination from Bagnan in the year 2009.

21. D.W. 1 is also getting support from P.W. 4 Sudip Kumar Saha the

I.O. who stated as follows:-

"I have done an inquiry in this case as per order of the Ld. Court

and submitted a report and I perused the Bagnan P.S. G.D. entry No.

288/2015 dt. 06.02.2015 and Bagnan P.S. missing G.D. entry No.

08/2015, dt. 06.02.2015 and I stated in the said report that the accused

is a resident of village Khejuritti, P.S. Bagnan, Dist. Howrah, and her

name is Farjana Hasin, daughter of Dr. S.S. Ambia.

After knowing this matter I have not submitted any supplementary

Charge sheet and any report in final form before Ld. Court."

22. Learned Trial Court, I am sorry to say, could not appreciate the

evidence adduced by defence witnesses properly.

23. Learned Trial Court spent many words on the profession of the

father of the accused person which is neither a relevant fact nor is a

fact in issue.

The admit card of Secondary Examination of the accused girl is a

good piece of document relevant under Section 35 of the Evidence Act.

When it appears from the testimony of D.W. 3 that accused person

appeared in the Secondary Examination in the year 2009, learned Trial

Court should have no hesitation to rely upon the document and to hold

she was not a foreigner. There was no cogent reason to disbelieve the

evidence of the accused person, only because her birth certificate was

obtained in 2014, that too before the arrest.

24. In my humble opinion, accused person has discharged her onus to

prove that she is a resident of Bagnan, Howrah, within the territory of

India. She is a citizen by birth and so her parents. Therefore, she

cannot be said to have committed any offence within the meaning of

Section 14A (b) of the Foreigners Act. She is acquitted and be released

from bail bonds.

25. The Investigating Officer did not investigate the case properly. He

had been to Bagnan for investigation, came to know about the

correctness in the claim of D.W. 2 that his daughter went missing,

soon thereafter he informed police. The I.O. ascertained the fact that

the accused girl is a resident of Bagnan. Yet the I.O. sent up the girl for

trial. Learned Trial Court also refused to accept the evidence of the

Investigating Officer regarding his enquiry pursuant to direction by the

learned Trial Court and its findings regarding the status of the accused

person, without assigning any reason.

26. Every trial is a voyage of discovery in which truth is the quest.

Hon'ble Apex Court in MARIA MARGADIA SEQUERIA FARNANDES &

ORS. VS. ERASMO JACK DE SEQUERIA reported in 2012 AIR SCW

held that:-

"31. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.

The truth should be the guiding star in the entire judicial process.

32. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth.