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2010 DIGILAW 389 (PAT)

Madina Khatoon v. State Of Bihar

2010-03-17

RAKESH KUMAR

body2010
JUDGEMENT 1. Heard Mr. Dhananjay Kumar, learned counsel for the petitioners and learned counsel for the State. 2. The petitioner, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 23.1.1998 passed in G.R. No.640 of 1974, Trial No.672 of 1998 by the Chief Judicial Magistrate, Gopalganj. By the said order, the learned Magistrate had taken cognizance of the offence under Section 14 of the Foreigner Act. 3. Learned counsel for the petitioners, while challenging this order, submits that unless the matter relating to citizenship is decided by the Central Government, no proceeding can be initiated against a person for offence under Section 14 of the Foreigner Act. At this very point, he has relied upon a judgment of the Supreme Court reported in A.I.R.1971 Supreme Court 1382 (State of U.P. V/s. Rahmatullah) and also 1991 Cr. Law Journal 2921. Learned counsel for the petitioners has further tried to impress upon the Court by referring to several annexures to the petition, which are Annexures 4 to 9A. He submits that Annexure-4 is a khatiyan, which shows that father of the husband of petitioner no.2 was resident of Gopalganj. Similarly, he has referred to several certificates, which have been enclosed as annexures to the petition. He also refers to Annexure-8 to the petition whereby a certificate was granted by Election Officer in favour of petitioner no.1 to show that she was elected as Member Panchayat in the year 2001. Learned counsel for the petitioners further submits that it is true that at the time of partition, husband of the petitioner no.1 was employed in railway and he was posted in East Pakistan and he submits that the husband of petitioner no.1 never accepted the citizenship of Bangladesh and on these grounds, he has made prayer for quashing of order of cognizance. Learned counsel has also informed the Court that the husband of the petitioner no.1 is no more and as such criminal case instituted against him, had already abated long time. So far as decision of Honble Supreme Court, which has been relied upon by the petitioner is concerned, I am of the view that in the said case, facts and circumstances was not similar to the present case. So far as decision of Honble Supreme Court, which has been relied upon by the petitioner is concerned, I am of the view that in the said case, facts and circumstances was not similar to the present case. In the case of Rahmatullah (supra), he had over stayed in India though he was citizen of Pakistan and in that view of the matter, the judgment was passed in that case. Similarly, the case referred to by learned counsel for the petitioners i.e., 1991 Criminal Law Journal 2921 is concerned, that case was also decided on the point of over stay, which is not the position in the present case. 4. In the present case, police after investigation, had submitted charge sheet under Section 14 of the Foreigners Act against accused persons and thereafter, order of cognizance was passed in the month of January 1998. The petitioners slumbered over their right for several years and after expiry of more than six years from the order of cognizance, they rush to this Court that too, while invoking jurisdiction of this Court under Section 482 of the Cr.P.C, which is to be invoked in rarest of rare cases. On perusal of the order of cognizance, I do not find that there is any error. 5. So far as documents which have been referred to by learned counsel for the petitioners and which have been annexed in the petition, I am of the view that this is not the stage to look into all those documents. Moreover, such documents, which have been annexed in a petition, filed under Section 482 of Cr.P.C. without being proved, cannot be looked into by this Court. In a criminal case, Court is required to look into only those documents, which have been collected during the investigation by the police. The documents on which petitioners are relying can be used by the accused persons at the defence stage during the trial. I am refraining myself to examine such documents particularly in view of the fact that prima facie I do not find any error in the order of cognizance, which was passed long back in the year 1998. There is no merit in the petition. 6. Accordingly, petition stands rejected. 7. Since the matter is old, it is expected that Court below will proceed with the case expeditiously. 8. Let this order be communicated to the Court below forthwith.