Zehra Roopa Menon @ Roopa Kumari D/O Late C.P. Parmeshwara Menon Vs. State of Karnataka by Its Metagalli Police Station - Court Judgment

Excerpt:
criminal - illegal passport - section 3 and 4 of foreigners act and section 420 of indian penal code,1860 (ipc) -petitioner charged for offence under sections 3 and 4 of act as well section 420 of ipc - discharged by trial court - appeal - appellate court set aside discharge order and remanded back matter for trial - hence, present petition - held, police on investigation seized two different passports with different name and date of birth of same person from accused - no fraud committed by airport authorities in giving information to investigating agency - trial court failed to appreciate material produced by investigation officer - sufficient material to proceed with trial - no reason to interfere with impugned order - petition dismissed - foreigners act,1946[c.a.no.31/1946] -- sections 3 & 7: [subhash b. adi, j] foreigner overstaying in india and obtained indian passport by furnishing wrong information - magistrate discharged the accused on the aground that there is no adjudication by central government under section 9 of the citizenship act, 1955 as regards the validity of the nationality of accused - reversed in revision by fast track court - held, question of citizenship does not arise. order of fast track court upheld and matter remitted to magistrate. - ' and submitted that, the complaint clearly discloses thai the petitioner has got an indian passport and if the question as to whether she is an indian citizen or not, is a matter which requires an adjudication. 14. in the circumstances, i am of the opinion that the learned magistrate has utterly failed to appreciate the material produced by the police.ordersubhash b. adi, j.1. this revision petition is directed against the order passed by the fast track court dated 11.5.2006 in crl.r.p. no. 89/05 reversing the order passed by the learned magistrate dated 14.2.2005 in c.c. no. 27/04.2. the metagalli police charge sheeted the accused for an offence punishable under sections 3 and 7 of the foreigners' act and also section 420 of ipc. the case of the prosecution is that as per the provisions of foreigner' act, foreigner is under the obligation to maintain certain documents and produce it before such person as prescribed.3. it is found that from 12.1.1994 the accused has been residing in india without, necessary permission. on 16.6.1998, the accused was directed to produce the necessary documents. when the authority got the information that the accused has falsely got created indian passport with an intention to de-fraud the authority, the authority on coming to know of the same it made enquiries and found that the accused has obtained indian passport by giving false information. it is also alleged that the accused had obtained the iranian passport and overstayed in india by claiming that she is an indian citizen. the hyderabad authority which came to know that the bangalore passport office has issued the passport, it informed the same to the bangalore police.4. the metagalli police registered a case in crime no. 131/98 on 3.11.98 and on mitigation, the police has filed the charge sheet.5. the accused - petitioner herein has sought for the discharge before the learned magistrate. the learned magistrate, by his order dated 14.2.2005, relying on the document produced by the accused and the defense taken by the accused and also on the ground that there is no adjudication by the central government under section 9 of the citizenship act as regards to the validity of the nationality of the accused and discharged her from the alleged offence.6. this order was called in question by the state in revision before the revisional court. the revisional court, on appreciation of the material collected by the police, found that the petitioner had obtained two passports, one from the iranian government and another from the indian government and it also found that the material collected by the police disclosed that the petitioner has changed her name only with an intention to get indian passport and found that there is sufficient material to proceed against the accused and accordingly set aside the order of the learned magistrate and remanded the matter for trial.7. the learned counsel appearing for the petitioner submitted that, the revisional court was not justified in settling aside the order of the magistrate, on the ground that the police has collected material to proceed with trial. he further submitted that, the charge sheet is fifed even before adjudication by the authority under section 9 of the citizenship act. he further submitted that, in case of any dispute as to the citizenship, the matter requires to be adjudicated lay the authority under the provision of the citizenship act. in this regard, he relied on a decision of the apex court reported in : air1962sc1778 in the matter of 'government of andhra pradesh v. syed mohd. khan and ors.' and submitted that, the complaint clearly discloses thai the petitioner has got an indian passport and if the question as to whether she is an indian citizen or not, is a matter which requires an adjudication.8. learned government header appearing for the state submitted that, it is not a dispute regarding indian nationality or foreign nationality. it is the case of cheating the authority in obtaining indian passport. he submitted that there are two passports obtained by the accused. one is obtained on 7.2.1992 from the iranian government as an iranian citizen and on 1.10.1997 the accused obtained another passport from the indian government on the ground that she is an indian. he also pointed out that in the passport obtained by the iranian government, the name of the accused is shown as jehra. however, when she applied for passport to the indian authority, she has stated her name as chakata parmeshwari menon kumari and he also pointed out that in both the passports, the date of birth of the accused is different. in the iranian passport, the date of birth is 29.2.1960, whereas in the indian passport, it is shown as 28.2.1959. he further submitted that, the decision of the apex court referred to by the learned counsel is not applicable to the facts and circumstances of the case and submitted that the offence alleged against the petitioner is a very serious offence and when the material is collected by the police and placed before the learned magistrate, the learned magistrate was not justified in relying on the defense and the documents produced by the accused to discharge her.9. the point that arises for consideration isas to whether enquiry under section 9 of the citizenship act is necessary in a case where the accused having two passports of two different nations.10. the allegation in the complaint is that the accused cause to india in 1992 and she overstayed and in this regard there was an enquiry at hyderabad and on enquiry be produced the indian passport, alleged to have been issued on 1.10.1997 and claimed that she is an indian citizens and has, got the right to stay in india. when the police found that there are two passports in two different names, an enquiry was made and immediately it was informed to the bangalore authority from where the indian passport was issued. the police, based on the information, registered a crime and thereafter, investigation was made and charge sheet was filed.11. this is not a case of disputed nationality but case of same person obtaining two passports. the apex court, in the matter of syed mohd. khan has observed that if there is any dispute pursuant to the citizenship of the country, title enquiry is contemplated under section 9 of the citizenship act and it is the said authority which has to make an enquiry. in the said case there were 22 persons who had come to india with a passport issued from pakistan government, the andhra pradesh government, passed an order that they had lost the indian citizenship and ordered deporting of the said persons. this order was questioned in the high court of andhra pradesh and when matter reached the apex court, apex court under the facts and circumstances of the said case observed as under:indeed it is clear that in the course of the judgment, this court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the central government and it is only after the central government has decided the point that the state government can deal with the person as a foreigner. it may be that if a passport from a foreign government is obtained by a citizen and the case falls under the impugned rule, the conclusion may follow that he has acquired the citizenship of the foreign country; but the conclusion can be drawn only by the appropriate authority authorised under the act to enquire into the question.12. it is clear from the observation of the apex court that if an indian national obtains a passport of other country, then the question arises, as to whether the person has lost the indian citizen or not, the said question is adjudicated by the said authority. but in this case the accused has come to india on iranian passport and she has overstayed in india and thereafter, has obtained the passport from the indian government to claim that she is an indian. it is clear from the passport obtained from the iranian government where she has given her name as jehra and thereafter she has applied for indian passport by giving wrong name and wrong date of birth. both the passport belong to accused. the passport obtained in india is dated 1.10.1997 that is subsequent to the iranian passport. the facts of this case are different from the facts iii the judgment of the apex court. if a person is an iranian national and has come to india and has obtained the passport in india, that too by giving different name, different date of birth, prima facie which falls not only under section 420 of ipc but also under sections 3 and 4 of the foreigners' act.13. however, at this stage, i need not consider the merits of the case. only thing that is required to be considered is as to whether the police has collected the material, to proceed in the matter or not, the police on investigation has found two different passports of the same person and are seized from the accused. they also show different name and different date of birth and the accused has tried to hide her identity, in such circumstances, if the person has committed fraud giving false information to the authority to get a passport, when these material is available on record the learned magistrate has overlooked the same.14. in the circumstances, i am of the opinion that the learned magistrate has utterly failed to appreciate the material produced by the police. it is the duty of the learned magistrate to consider the material, both oral and documentary placed before him to find out whether the same is sufficient or not to proceed with trial i find the material for framing charge is sufficient.15. the fast track court after hearing the parties has found that, there is sufficient material to proceed with the trial and has rightly allowed the revision petition. i find no reason to interfere with the said order.16. accordingly, the revision petition is dismissed.any observation made during the course of this order should not influence the mind of the learned magistrate during the course of trial.

Judgment:
ORDER

Subhash B. Adi, J.

1. This revision petition is directed against the order passed by the Fast Track Court dated 11.5.2006 in Crl.R.P. No. 89/05 reversing the order passed by the learned magistrate dated 14.2.2005 in C.C. No. 27/04.

2. The Metagalli police charge sheeted the accused for an offence punishable under Sections 3 and 7 of the Foreigners' Act and also Section 420 of IPC. The case of the prosecution is that as per the provisions of Foreigner' Act, foreigner is under the obligation to maintain certain documents and produce it before such person as prescribed.

3. It is found that from 12.1.1994 the accused has been residing in India without, necessary permission. On 16.6.1998, the accused was directed to produce the necessary documents. When the authority got the information that the accused has falsely got created Indian passport with an intention to de-fraud the authority, the authority on coming to know of the same it made enquiries and found that the accused has obtained Indian passport by giving false information. It is also alleged that the accused had obtained the Iranian passport and overstayed in India by claiming that she is an Indian citizen. The Hyderabad authority which came to know that the Bangalore passport office has issued the passport, it informed the same to the Bangalore police.

4. The Metagalli police registered a case in Crime No. 131/98 on 3.11.98 and on mitigation, the police has filed the charge sheet.

5. The accused - petitioner herein has sought for the discharge before the learned magistrate. The learned magistrate, by his order dated 14.2.2005, relying on the document produced by the accused and the defense taken by the accused and also on the ground that there is no adjudication by the Central Government under Section 9 of the Citizenship Act as regards to the validity of the nationality of the accused and discharged her from the alleged offence.

6. This order was called in question by the State in revision before the revisional court. The revisional court, on appreciation of the material collected by the police, found that the petitioner had obtained two passports, one from the Iranian Government and another from the Indian Government and it also found that the material collected by the police disclosed that the petitioner has changed her name only with an intention to get Indian passport and found that there is sufficient material to proceed against the accused and accordingly set aside the order of the learned magistrate and remanded the matter for trial.

7. The Learned Counsel appearing for the petitioner submitted that, the revisional court was not justified in settling aside the order of the magistrate, on the ground that the police has collected material to proceed with trial. He further submitted that, the charge sheet is fifed even before adjudication by the authority under Section 9 of the Citizenship Act. He further submitted that, in case of any dispute as to the citizenship, the matter requires to be adjudicated lay the authority under the provision of the Citizenship Act. In this regard, he relied on a decision of the Apex Court reported in : AIR1962SC1778 in the matter of 'Government of Andhra Pradesh v. Syed Mohd. Khan and Ors.' and submitted that, the complaint clearly discloses thai the petitioner has got an Indian passport and if the question as to whether she is an Indian citizen or not, is a matter which requires an adjudication.

8. Learned Government Header appearing for the State submitted that, it is not a dispute regarding Indian nationality or foreign nationality. It is the case of cheating the authority in obtaining Indian passport. He submitted that there are two passports obtained by the accused. One is obtained on 7.2.1992 from the Iranian Government as an Iranian citizen and on 1.10.1997 the accused obtained another passport from the Indian Government on the ground that she is an Indian. He also pointed out that in the passport obtained by the Iranian Government, the name of the accused is shown as Jehra. However, when she applied for passport to the Indian authority, she has stated her name as Chakata Parmeshwari Menon Kumari and he also pointed out that in both the passports, the date of birth of the accused is different. In the Iranian passport, the date of birth is 29.2.1960, whereas in the Indian passport, it is shown as 28.2.1959. He further submitted that, the decision of the Apex Court referred to by the learned Counsel is not applicable to the facts and circumstances of the case and submitted that the offence alleged against the petitioner is a very serious offence and when the material is collected by the police and placed before the learned magistrate, the learned magistrate was not justified in relying on the defense and the documents produced by the accused to discharge her.

9. The point that arises for consideration is

as to whether enquiry under Section 9 of the Citizenship Act is necessary in a case where the accused having two passports of two different nations.

10. The allegation In the complaint is that the accused cause to India in 1992 and she overstayed and in this regard there was an enquiry at Hyderabad and on enquiry be produced the Indian passport, alleged to have been issued on 1.10.1997 and claimed that she is an Indian citizens and has, got the right to stay in India. When the police found that there are two passports in two different names, an enquiry was made and immediately it was informed to the Bangalore authority from where the Indian passport was issued. The police, based on the information, registered a crime and thereafter, investigation was made and charge sheet was filed.

11. This is not a case of disputed nationality but case of same person obtaining two passports. The Apex Court, in the matter of Syed Mohd. Khan has observed that if there is any dispute pursuant to the citizenship of the country, title enquiry is contemplated under Section 9 of the Citizenship Act and it is the said authority which has to make an enquiry. In the said case there were 22 persons who had come to India with a passport issued from Pakistan Government, the Andhra Pradesh Government, passed an order that they had lost the Indian citizenship and ordered deporting of the said persons. This order was questioned in the High Court of Andhra Pradesh and when matter reached the Apex Court, Apex Court under the facts and circumstances of the said case observed as under:

Indeed it is clear that in the course of the judgment, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner. It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule, the conclusion may follow that he has acquired the citizenship of the foreign country; but the conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question.

12. It is clear from the observation of the Apex Court that if an Indian national obtains a passport of other country, then the question arises, as to whether the person has lost the Indian citizen or not, the said question is adjudicated by the said authority. But in this case the accused has come to India on Iranian passport and she has overstayed in India and thereafter, has obtained the passport from the Indian Government to claim that she is an Indian. It is clear from the passport obtained from the Iranian Government where she has given her name as Jehra and thereafter she has applied for Indian passport by giving wrong name and wrong date of birth. Both the passport belong to accused. The passport obtained in India is dated 1.10.1997 that is subsequent to the Iranian passport. The facts of this case are different from the facts iii the judgment of the Apex Court. If a person is an Iranian national and has come to India and has obtained the passport in India, that too by giving different name, different date of birth, prima facie which falls not only under Section 420 of IPC but also under Sections 3 and 4 of the Foreigners' Act.

13. However, at this stage, I need not consider the merits of the case. Only thing that is required to be considered is as to whether the police has collected the material, to proceed in the matter or not, The police on investigation has found two different passports of the same person and are seized from the accused. They also show different name and different date of birth and the accused has tried to hide her identity, in such circumstances, if the person has committed fraud giving false information to the authority to get a passport, when these material Is available on record the learned magistrate has overlooked the same.

14. In the circumstances, I am of the opinion that the learned magistrate has utterly failed to appreciate the material produced by the police. It is the duty of the learned magistrate to consider the material, both oral and documentary placed before him to find out whether the same is sufficient or not to proceed with trial I find the material for framing charge is sufficient.

15. The Fast Track Court after hearing the parties has found that, there is sufficient material to proceed with the trial and has rightly allowed the revision petition. I find no reason to interfere with the said order.

16. Accordingly, the revision petition is dismissed.

Any observation made during the course of this order should not influence the mind of the learned magistrate during the course of trial.