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2011 DIGILAW 1229 (CAL)

Viraj Singh Hooda v. The State

2011-09-05

S.K.CHAKRAVARTY

body2011
Judgment :- S.K. CHAKRABARTI, J. 1. The present application under Section 401/482 Cr.P.C. is directed against order No. 3 dated 06.04.2011 including prayer for quashing the proceedings being Sessions Case No.21 of 2011(S.T. No. 16 of 2011) under Section 14 C of the Foreigners Act, 1946 in connection with Central Crime Police Station Case No. Crime No.160/2011 dated 16.02.2011 now pending before the Court of learned Additional Sessions Judge, Port Blair. 2. The petitioner contends that he has been falsely implicated in this case having no nexus with the principal offenders. It was alleged in the FIR that on 16.02.2011, SI Rahul, SHO, PS Humfrigunj along with force were engaged in anti poaching operation to Twin Island at 0840 hrs. During such operation they found that three foreign nationals namely; (1) Jennifer Georgina, (2) Dr. Stephen John and (3) Ashrafi Andrew Noupour, who are all British nationals entered into the prohibited area of Twin Island on the strength of their restricted area permit issued to foreigners. On inquiry, they informed that they were staying at Wandoor Sanctuary Resort and the owner Shri Viraj Singh Hooda, the present petitioner had sent them by providing engine dinghy to visit Twin Island. They could not produce any valid permit or licence to stay at such prohibited area and thereby they violated the provisions of Section 14(A) of the Foreigners (Amendment) Act, 2004 and the dinghy driver who also failed to produce any valid licence or permit to bring the aforesaid foreigners to Twin Island also violated Section 13 of the Foreigners Act. Accordingly, a case was registered under Section 14(A) of the Foreigners (Amendment) Act, 2004 read with Para 3 of FRA Order 1963 and Section 13 of the said Act for investigation. 3. After completion of the investigation, chargesheet was submitted against six accused persons including the present petitioner on 09.03.2011. After commitment of the case by the Chief Judicial Magistrate, Port Blair the leaned Transferee Court accepted the plea of guilt tendered by three chargesheeted accused, namely, Ashrafi Andrew Noupour, Ms. Kevin Jennifer and Dr. Stephen John and convicted them under Section 14 (c) of the Foreigners Act and sentenced them to suffer imprisonment for a period of one day and to pay a fine of Rs. Kevin Jennifer and Dr. Stephen John and convicted them under Section 14 (c) of the Foreigners Act and sentenced them to suffer imprisonment for a period of one day and to pay a fine of Rs. 7000/-each in default to suffer S.I. for three months each and their restricted area permit was cancelled with a direction that the convicted persons shall be repatriated to their country of United Kingdom as per rule with immediate effect. 4. On the same date having heard the learned lawyers for both parties, the learned court below has further held that there are sufficient prima-facie materials against other three accused persons namely; Shri Viraj Singh Hooda, Shri K.Ganeshan and Shri B. Karthick under Section 14(c) of the Foreigners Act, 1946 and accordingly, he has framed charges against them, read over and explained to them in which all of them pleaded not guilty and claimed to be tried and by order dated 17.06.2011 he has fixed a time schedule for evidence of the proceeding from 12.09.2011 to 19.09.2011. The said proceeding has now been assailed by the present petitioner Shri Viraj Singh Hooda. 5. Mr. Adhikari, learned senior counsel appearing for the said petitioner has contended that the entire prosecution case hinges on the testimony of police personnel. The petitioner being the owner of Sanctuary Resort has no connection or intention to send the principal accused i.e. British Nationals to the prohibited area. In fact, they have gone there on their own accord by hired boat and boat man who carried them to the prohibited area may be responsible for the alleged offence. However, there is no prima-facie materials against the present petitioner and the offence is triable by a Magistrate of the First Class and not by Additional Sessions Judge and further continuation proceeding against him will merely abusing of the process of law which should be prevented by exercise of the inherent power of this Hon’ble Court under Section 482 Cr.P.C. 6. Mr. Adhikari further contends that the principal offenders have been convicted under Section 14 (C) of the Act. For commission of such offence, the present petitioner cannot be treated as a abettor within the meaning of Section 14 (c) of IPC. 7. Mr. Mr. Adhikari further contends that the principal offenders have been convicted under Section 14 (C) of the Act. For commission of such offence, the present petitioner cannot be treated as a abettor within the meaning of Section 14 (c) of IPC. 7. Mr. Mandal, learned Government Pleader for the State, however, has opposed the move and contended that this Hon’ble Court should not exercise its inherent power at the trial stage since the learned Additional Sessions Judge has already fixed the time schedule for recording of evidence to be tendered by the prosecution. Having being satisfied, the learned Sessions Judge framed charges under Section 14 ( c) of Foreigners Act against three accused persons on 06.04.2011 and the said order has not been challenged before the higher authority. Therefore, at this belated stage the proceeding cannot be quashed against the present petitioner who will get ample opportunity to agitate the point raised before this revisional court at the time of trial. He has further contended that at trial stage the court should exercise its power under Section 482 Cr.P.C, sparingly as it is a settled principle of law that the prosecution should be given ample opportunity to prove their case so that the real culprit may be brought to book. Therefore, there is no merit in this belated application, which should be dismissed. 8. For the sake of convenience, the relevant provision of Section 14(C) and Section 14 (c) of the Foreigners Act, 1946 are quoted below:- “14C. Penalty for abetment.- Whoever abets any offence punishable under section 14 or section 14A or section 14B shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence. Explanation. - For the purpose 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 India Penal Code (45 of 1860) 14. Penalty for contravention of provisions of the Act, etc. – Whoever – …….. Penalty for contravention of provisions of the Act, etc. – Whoever – …….. (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 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. 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) Act, 1920 (34 of 1920).” 8. Admittedly, in this case charge has been framed against the petitioner unless Section 14(C) of the Foreigners Act, 1946 on 06.04.2011 by Order No.3 which has not been challenged within the period of limitation. It is also admitted position that time schedule for evidence has been framed by Order No.8 dated 27.6.2011 and instant application has been filed on 23.08.2011. 9. From rival contentions of the parties it appears that the petitioner claims that he is not connected in any way with the foreign nationals for violation of the terms of licence and has not abated them in any way to enter into the prohibited area. Learned lawyer for the petitioner further contended that those British nationals entered into the prohibited area on the strength of valid licence granted to them, which was valid upto 12th March, 2011. Learned lawyer for the petitioner further contended that those British nationals entered into the prohibited area on the strength of valid licence granted to them, which was valid upto 12th March, 2011. Learned lawyer for the State however, has contended that from the recital of said licence it will be crystal clear that the licence was granted in favour of the principal accused to visit and stay over night in municipal area of Port Blair, Havelock, Long Islands, Neil Island, entire islands of South Andaman and Middle Andaman excluding Tribal Reserved Area ( 5 KM away from Constance Bay to Luis Inlet Bay – Western Coast Tribal Reserve), Baratang, Rangat, Mayabunder, Diglipur, North Passage Island, Little Andaman excluding Tribal Reserve and all islands in Mahatma Gandhi Marine National Park except Boat, Hobday, Twin Island, Tarmugli, Malay and Pluto Island. Therefore, by virtue of such permit, the principal accused had no right to enter into the prohibited area of Twin Island. 10. Learned lawyer for the petitioner, however, has contradicted Mr. Mandal and claimed that this permit empowers the licence holder to visit Twin Island as per above recital. Such an argument is self contradictory. It is not the case of the petitioner that three foreign nationals entered into Twin Island on the strength of valid licence. Petitioner’s case is that he is not connected in any way with the visit of the foreign nationals to Twin Island and the allegation levelled against him is that he has procured hired dinghy for the foreign nationals and thereby abated principal offenders to enter into the prohibited area. The true meaning and import of the recital of the restricted area permit dated 11.02.2011 valid upto 12.03.2011 has been called in question by Mr. Adhikari after framing of the charge. 11. On perusal of Case Diary, I find that there are incriminating materials against the petitioner to the above effect for which the learned court below has framed charges against him under Section 14 (C) of the Act for violation of the provision of Section 14(c) of the Act by the principal offenders. Once the principal offenders have admitted their guilty it is purely a disputed question of fact as to whether the present petitioner procured hired dinghy for them for the purpose of visiting such prohibited area or not. The revisional court cannot adjudicate such pure question of fact. 12. Once the principal offenders have admitted their guilty it is purely a disputed question of fact as to whether the present petitioner procured hired dinghy for them for the purpose of visiting such prohibited area or not. The revisional court cannot adjudicate such pure question of fact. 12. I also find from CD that such allegations are not only forthcoming from the testimony of police personnel but also from some other independent witnesses. Therefore, learned court below has rightly framed that charge under Section 14(c) of the Act against three other accused persons including the present petitioner which order should not be interfered at the stage of trial. 13. Mr. Mandal representing the State has rightly pointed out that after framing of charges the petitioner has not assailed the order within the period of limitation and as such he has accepted the decision taken by the learned court below culminating into trial of this case. In the midst of such trial the court should not exercise its inherent power since prima-facie incriminating materials are forthcoming against the accused. 14. So, I find much substance in the contention of Mr. Mandal and hold that at this stage, the petitioner cannot raise such point. It is for the learned trial court to decide the disputed facts as to whether in terms of the licence granted to the principal offenders they were permitted to enter into the prohibited area of Twin Island and as to whether the present petitioner was instrumental in abating such offence by procuring hired dinghy for them and whether the principal offenders committed the offence in consequence of such abetment of the petitioner. 15. In explanation (i) to the provisions of Section 14(C) of the Act, it has been further clarified that for the purpose of this Section, an act or offence is said to be committed in consequence of the instigation or in pursuance of the conspiracy, or with the aid which constitutes the offence. Determination of such question solely rest on the fact to be proved by the prosecution by oral and documentary evidence. Therefore, the alleged offence of Section 14(C) of the Act is a clear question of dispute fact which cannot be decided by the revisional court. 16. Determination of such question solely rest on the fact to be proved by the prosecution by oral and documentary evidence. Therefore, the alleged offence of Section 14(C) of the Act is a clear question of dispute fact which cannot be decided by the revisional court. 16. Similarly, the interpretation of the language of the restricted area permit dated 11.02.2011 as regards the words “except Boat, Hobday, Twin Islands, Tarmugli, Malay and Pluto Island” cannot be made by this revisional court on account of plea of guilt made by the principal offenders and accepted by the learned trial court and thus reached its finality. So it is now for the learned trial court to decide how far admission of guilt by the principal offenders will be relevant and applicable in determining the guilt of the abettor for the aid alleged to have been made in procuring hired dinghy within the meaning of explanation (i) to Section 14 C of the Act. 17. Mr. Adhikari has further contended that the alleged offence under Section 14(c) is triable by the court of Magistrate First Class and not by the Sessions Court. It appears from lower court record that charge under section 14(c) was framed against the principal offender and the maximum punishment for such offence is imprisonment which may extend to five years with fine and for commission of the offence of Section 14 C for abetment of such offence prescribed punishment will be as provided for the principal offence. Section 29(2) of Cr.P.C has prescribed that a Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years with or without five not exceeding ten years so trial of the petition by the Session Court is not inconsistent with the provisions of the Criminal Procedure Code and so such argument of Mr. Adhikari is not tenable in law. I hold that the jurisdiction of a court is determined on the basis of maximum quantum of punishment to be inflicted and not on the basis of awarded in a particular case. 18. Therefore, I do not find any merit in the revisional application, which is dismissed. Interim order, if any, shall stand vacated. Learned court below is directed to proceed with the trial as per schedule and to dispose of the case as expeditiously as possible. 18. Therefore, I do not find any merit in the revisional application, which is dismissed. Interim order, if any, shall stand vacated. Learned court below is directed to proceed with the trial as per schedule and to dispose of the case as expeditiously as possible. It is made clear that the learned trial court will not be influenced in any way by the observations made in dealing with this application in deciding merit of the case. 19. Urgent Photostat copy of this order, if applied for, be given on usual undertakings.