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2011 DIGILAW 461 (UTT)

Iliyashu Akni Lateef v. State of Uttarakhand

2011-07-27

SERVESH KUMAR GUPTA

body2011
Hon’ble Servesh Kumar Gupta, J. This criminal jail revision has been directed against the judgment and order of the Sessions Judge, Champawat dated 20.6.2009 whereby the criminal appeal no.5 of 2009, preferred by Iliyashu Akni Lateef was dismissed and the order and judgment passed by the learned C.J.M. Champawat dated 2.12.2008 was sustained. 2. Put briefly, the facts are that accused/revisionist Iliyashu Akni Lateef while making the attempt to leave India to Nepal through the border check post located at Banbasa, District Champawat, was checked. It was found that he did not have his own passport or the valid Visa to reside in India. The passport, which was recovered from him, belonged to some COLLINS DUBE (as the name was mentioned on the passport). The security personnel, while noticing that the face of the revisionist was not resembling to the photo pasted on the passport, further checked him and interrogated, when the fact revealed that the Visa in possession of him was also forged one. So after lodging the FIR, he was booked for violation of the Foreigners Act as well as for impersonating himself under the relevant Sections of the I.P.C. 3. The chargesheet was submitted and the charge of Section 14 of the Foreigners Act, 1946, besides the charge of Sections 419 and 471 IPC was levelled against him. He was tried by the C.J.M. and after the conclusion of trial, he was acquitted for the offence u/s 471 IPC while for the offence of Section 14 of the Foreigners Act, he was convicted and sentenced to undergo five years’ R.I. nay Rs.1.00 lacs fine, in default of fine he was ordered to further undergo one year’s R.I. For the offence u/s 419 IPC, he was sentenced to undergo one year’s additional imprisonment. 4. On preferring the appeal, it was dismissed by the learned Sessions Judge, so this revision. 5. Learned counsel for the revisionist has advanced his argument that from the statements of PW1 (fact witness of check post) and PW5 (the I.O.), it is reflected that two passports were recovered from the possession of the revisionist while only the single sealed passport was produced in the Court. Even if this contention of the learned counsel is accepted for a moment, then also, on this basis, the entire fact evidence cannot be thwarted to absolve the accused for the offence of Section 14 of the Foreigners Act. Even if this contention of the learned counsel is accepted for a moment, then also, on this basis, the entire fact evidence cannot be thwarted to absolve the accused for the offence of Section 14 of the Foreigners Act. Section 419 IPC offence is of impersonation and that also has been proved because of the different photo identity on the recovered passport from the person of the accused/revisionist. In this way, so far as the merit of proving the case u/s 14 of the Foreigners Act and u/s 419 IPC is concerned, the arguments of learned counsel for the revisionist do not have any substance. 6. The second contention of learned counsel for the revisionist is that under Section 14 of the Foreigners Act, the maximum punishment that the Chief Judicial Magistrate could have given to the revisionist is five years and there is no specific mention as regard the quantum of fine in the relevant section. In that situation, the powers of the Chief Judicial Magistrate cannot be constructed to empower him to any amount of fine to his whims and wisdom. In such a situation, Section 29 of Cr.P.C. is relevant, which envisages the powers of the C.J.M. regarding the passing of sentence of imprisonment and empowers him to pass any sentence authorized by law. The relevant law is envisaged in Section 14 of the Foreigners Act and that does not empower the C.J.M. to pass the sentence of Rs.1.00 lacs of fine. So, this way, so far as the imposition of the fine is concerned, the powers of the C.J.M. cannot be on a better footing than the powers which are prescribed under Section 29(2) of Cr.P.C. which empowers the Magistrate of the First Class to impose a fine not exceeding Rs.10,000/-, because the Chief Judicial Magistrate is also a Magistrate of the First Class and not above. This Court do agree with the contention of the learned counsel for the revisionist in this regard. So, the fine imposed by C.J.M. to the tune of Rs.1.00 lacs is reducible to the fine of Rs.10,000/- only. 7. This Court do agree with the contention of the learned counsel for the revisionist in this regard. So, the fine imposed by C.J.M. to the tune of Rs.1.00 lacs is reducible to the fine of Rs.10,000/- only. 7. Learned counsel for the revisionist has also prayed that this revisionist was remanded to the first judicial custody on 27.1.2008 and he has served out the sentence of more than 3½ years since then and in the interest of justice, his sentence is also prayed to be reduced seeing the gravity of offence. In this count also, the Court do agree with the learned counsel. With the result, the revision is partly allowed. On the question of conviction, it fails while on the question of quantum of sentence, it is modified as follows: - 8. The quantum of sentence of the revisionist Iliyashu Akni Lateef of five years’ R.I., as passed in maximum by the learned C.J.M., is reduced to the sentence of 3½ years and a sentence of Rs.1.00 lacs of fine is reduced to that of Rs.10,000/-. The sentence of 419 IPC will be deemed to have run concurrently along with the sentence of Section 14 of the Foreigners Act. If the revisionist fails to pay the fine of Rs.10,000/-, then he will undergo further imprisonment for three months. The cash, along with his personal belongings recovered from him, be returned to him as per Rules. His release, after serving out the sentence, will also be subject to the Foreigners Rules.