Karnataka High Court

State Of Karnataka By vs Abdul Haleem on 6 December, 2023

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                                                            NC: 2023:KHC:44055
                                                        CRL.A No. 1858 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 6TH DAY OF DECEMBER, 2023

                                               BEFORE
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                             CRIMINAL APPEAL NO. 1858 OF 2017
                   BETWEEN:

                   STATE OF KARNATAKA BY
                   H.S.R. LAYOUT POLICE STATION,
                   BENGALURU. REP. BY THE
                   STATE PUBLIC PROSECUTOR,
                   HIGH COURT BUILDING,
                   BENGALURU - 01.
                                                                  ...APPELLANT
                   (BY SRI. M.R.PATIL, HCGP)

                   AND:

                   ABDUL HALEEM,
                   S/O ABDUL HAL ALANDAR,
                   AGED ABOUT 23 YEARS,
                   RESIDING IN A PLASTIC SHED
                   NEAR BELLANDUR LAKE,
                   BENGALURU - 560 103
Digitally signed
by SANDHYA S       PERMANENT RESIDENT OF
Location: High     SHERANKHULLA VILLAGE,
Court of
Karnataka          RAYINDA THANA,
                   BAGEERHAT DISTRICT,
                   BANGLADESH.
                                                                ...RESPONDENT

                        THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C
                   PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
                   JUDGEMENT AND ORDER DATED 29.08.2017 PASSED BY THE
                   LXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
                   BENGALURU CITY (CCH-69) IN S.C.NO.623/2016 ACQUITTING
                   THE RESPONDENT-ACCUSED FOR THE OFFENCE PUNISHABLE
                   UNDER SECTION 14(c) OF FOREIGNER'S ACT, 1946 AND SET
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                                              NC: 2023:KHC:44055
                                        CRL.A No. 1858 of 2017




ASIDE THE JUDGEMENT AND ORDER DATED 29.08.2017
PASSED BY THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS    JUDGE,  BENGALURU   CITY  (CCH-69) IN
S.C.NO.623/2016 ACQUITTING THE RESPONDENT-ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 14(c) OF
FOREIGNER'S ACT.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard on admission.

2. The State has preferred this appeal against the

judgment of acquittal dated 29.08.2017 in

SC.No.623/2016 passed by the LXVIII Additional City Civil

And Sessions Judge, Bengaluru City (CCH-69).

3. The rank of the parties in this appeal are

referred in the same rank as referred by the trial Court.

4. The leaned High Court Government Pleader

Sri.M.R.Patil for the State has submitted his arguments

that the impugned judgment of acquittal passed by the

trial Court is illegal, invalid and contrary to law and

evidence and materials on record. Hence, the same is

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liable to be set aside. The reasons assigned by the trial

Court while passing the impugned judgment and order of

acquittal are erroneous and has caused substantial

miscarriage of justice. The trial Court has erred in not

appreciating prosecution witnesses and materials placed

on record in its proper perspective while acquitting the

accused and the same is resulted in substantial

miscarriage of justice.

5. The trial Court has not properly appreciated the

evidence of PWs.1 to 3 in accordance with law. The trial

Court has taken note of provisions contained in Section

14(A)(a) of the Foreigner's Act, 1946 (for short 'the Act').

The trial Court has erred in drawing adverse inference on

the prosecution for not producing the necessary

notification disclosing the illustrations of entry of any

person into India. On such, a finding is recorded on the

basis of a chart which has not been left against the

accused. The prosecution had no opportunity to produce

notification since it was seeking to prove a charge under

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Section 14(c) of the Act and not one under Section

14(A)(a) of the Act. Finding of the trial Court on this

aspect is perverse and liable to be interfered. On all these

grounds, he sought for allow this appeal.

6. Brief facts of the prosecution case are that:

The Police Sub-Inspector Sri.M.Nagaraju of H.S.R.

Layout Police Station received credible information on

27.01.2016 at about 8.40 p.m. that some Bangladesh

citizens have been staying near Bellandur lake by putting

up plastic tents, without any valid documents.

Accordingly, the Police Sub-Inspector along with CWs.2 to

4 and 6 went near Bellandur lake at about 8.45 p.m. and

found the accused there and on enquiry accused told them

that he is a citizen of Bangladesh and failed to produce

required documents for his entry into India. Thus, the

accused has committed an offence.

7. After filing the charge sheet, a case was

registered in C.C.No.11063/2016 and thereafter, case was

committed to the Court of Sessions and registered as

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S.C.No.623/2016. The trial Court has framed the charges

against the accused for the commission of offence

punishable under Section 14(a) of the Foreigners Act.

8. After filing charge sheet the case was registered

in CC.No.11063/2016 and thereafter case was committed

to the Court of Sessions and registered as

SC.No.623/2016. The Trial Court has framed the charges

against the accused for the commission of offence

punishable under Section 14(a) of the Foreigners Act,

1946. The same was read over and explained to the

accused. Having understood the same accused pleaded

not guilty and claimed to be tried.

9. To prove the guilt of the accused 03 witnesses

were examined as Ex.P1 to Ex.P3 and 03 documents were

marked as Ex.P1 to Ex.P3. After closure of prosecution

side evidence statement under Section 313 of Cr.P.C was

recorded. Accused has totally denied the evidence of

prosecution witnesses. But he has not chosen to adduce

any defence evidence on his behalf.

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10. On hearing the arguments the trial Court has

acquitted the accused. Being aggrieved by the impugned

judgment of acquittal the State has preferred this appeal.

11. Learned High Court Government Pleader has

submitted his arguments that the trial Court has not

provided any opportunity to produce the notification or

Government Order to show that the accused has been

prohibited from entering the place, in which he was

allegedly found the prosecution has preferred this appeal

in the year 2017. Even after lapse of more than six years

the prosecution has not taken any steps to produce the

said notification. The prosecution has not filed any

application under Section 391 of Cr.P.C in this regard.

Hence, that there is no substance in the arguments

advanced on behalf of the appellant.

12. On perusal of paragraph Nos.13 to 22 the trial

Court has observed as under:

"13. Before discussing the oral evidence of PWs.1 to 3, in my opinion, it would be relevant to take note of the provisions under Secs.14(a) to

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(c) of the Foreigner's Act, 1946, (henceforth referred to as 'the Act'). Sec.14(a) to (c) of the Act, is extracted as hereunder;

"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

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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 S.C.No.623/20168 penalty should not be paid by him.

Explanation.--For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (Entry into India)"

14. From the perusal of the provisions under Sec.14(a) of the Act, it is to be seen that, it is in respect of a person's (Foreigner's) stay after the expiry of the period of VISA.

15. Sec.14(b) of the Act is in respect of a person's (Foreigner's) stay in India in violation of the VISA conditions.

16. Sec.14(c) of the Act would be attracted if a person (Foreigner) contravenes the provisions of the Act or of any order made there under or any direction given in pursuance of the Act or such order for which no specific punishment is provided under the Act.

17. Therefore, it is to be seen that, charge a person under Sec.14(a) and (b), there should be a VISA issued and he should have violated the terms of the VISA or stayed in the country even after the expiry of the VISA period. Now, in the present case, it is not the case of the prosecution that, either S.C.No.623/20169 any VISA was issued to the accused and the accused had violated any terms of the VISA or stayed in India even after the expiry of the VISA period.

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Therefore, in my humble opinion, the provision under Sec.14(a) and (b) is not attracted to the set of allegations leveled against the accused in the present case.

18. Further, as the accused has been charged for an offence punishable under Sec.14(c) of the Act by way of alteration of the offence from Sec.14(a) to Sec.14(c), we have to see whether the said provision is attracted to the facts of the case on hand. Though it is mentioned in the provision under Sec.14(c) of the Act that if any person violates any of the provisions of the Act, he is liable for punishment under the said Section i.e., Sec.14(c) of the Act. But in the charge framed after alteration of the offence in the charge from Sec.14(a) to Sec.14(c), the accused has not been made known as to which provision of the Act, he has violated. As such, I am of the opinion that Sec.14(c) of the Act is also not attracted to the set of the facts (allegations leveled against the accused) of the case on hand.

19. It is also pertinent to take note of the provision under Sec.14A.(a) of the Act. The same is extracted as hereunder;

"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

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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."

20. From the perusal of the above said provision, it is to be seen that in order to charge a person under Sec.14A (a), there should be an Order of the Government restricting the entry of any person to India, without valid permit and further 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 the Act or any direction given in pursuance thereof.

21. However, the Investigating Officer has not produced any Notification or Government Order to show that the accused has been prohibited from entering the place in which he was allegedly found and also there is no Notification or Government Order to show that the area in which the accused was found was a restricted area. There is also no material on record to infer that the accused is a Bangladesh citizen and as such his entry into India is restricted.

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22. In so far as the oral evidence of the prosecution witnesses is concerned, it is to be seen that the version of PWs.1 and 2 is not consistent. Because PW.1 never speaks about the presence of the other 30-40 persons and they being the residents of Delhi and Uttar Pradesh. But PW.2 has deposed that there were 30 - 40 persons at the spot and they were the residents of Delhi and Uttar Pradesh and they had S.C.No.623/201612 valid documents. If really PWs.1 and 2 had visited the spot at the same time, there would not have been such a contradiction in their oral version. Even in Ex.P1-Spot Mahazar, no mention has been made with regard to the presence of 30-40 persons and they having produced valid documents in respect of their residence, as deposed by PW.2. Therefore, the versions of PWs.1 and 2 does not inspire much confidence. Hence, I am of the opinion that the prosecution has failed to place satisfactory evidence on record to bring home the guilt of the accused for the offence alleged. As such, I hold point No.1 in the NEGATIVE."

13. On re-examination/re-appreciation and re-

consideration of the entire evidence on record, I do not

find any illegality/infirmities in the impugned judgment of

acquittal, that there are no grounds to interfere with the

impugned judgment of acquittal. Hence, I proceed to pass

the following: