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2017 DIGILAW 1212 (HP)

Ming Ching Dorje v. State of H. P.

2017-10-31

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant Criminal Revision Petition is directed against the orders pronounced by the learned Special Judge, Mandi, on 19.01.2017, whereby, the petitioner along with other co-accused were charged for theirs committing offences punishable under Section 120-B and 420 of the IPC and under Section 120-B IPC and 13(2) of the Prevention of Corruption Act, 1988. 2. One Kushok Bakula, made, a testamentary disposition, whereby, he bequeathed, the property embodied therein vis-a-vis one Ming Chung Dorje. Accused/petitioner herein claimed himself to be the legatee under the testamentary disposition executed by late Shri Kushok Bakula. The petitioner is alleged, to, by making a false declaration vis-a-vis his being a citizen of India, hence, within the domain of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, sought according, of, statutory permission. On the Investigating Officer concerned, making investigations vis-a-vis a complaint, lodged with respect to the validity of the statutory permission accorded to the petitioner herein, he detected, of the apposite certificate issued by the Tehsildar, Leh with respect to the residence of Ming Chung Dorje, on basis whereof, he produced a fake certificate, of, his being an Indian National, whereupon, he obtained the apposite permission, being false, thereupon, an ensuing conclusion was formed by him, of, all official acts, in pursuance thereto, performed by all the officials concerned, being ingrained with pervasive elements of penally inculpable offences embodied in Section 420 read with Section 120-B of the IPC and Section 13(2) of the Prevention of Corruption Act. 3. The prosecution, may succeed, in clinching the charge against the accused, upon its, standing evidently proven (a) of the petitioner being not entitled to the benefit of Section 3 of the Citizenship Act, provisions whereof stand extracted hereinafter: “3. 3. The prosecution, may succeed, in clinching the charge against the accused, upon its, standing evidently proven (a) of the petitioner being not entitled to the benefit of Section 3 of the Citizenship Act, provisions whereof stand extracted hereinafter: “3. Citizenship by birth.-(1) Except as provided in sub-section (2), every person born in India,- (a) on or after the 26th day of January, 1950, but before 1st day of July, 1987; (b) on or after the 1st July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth; (c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where- (I) both of his parents are citizens of India; or (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth. (2) A person shall not be a citizen of India by virtue of this section if at the time of his birth- (a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, s the case may be, is not a citizen of India; or (b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.” (p.1893) dis-entitlements thereof standing spurred, by his, evidently not being born in India, in, the interregnum commencing from 26th January, 1950 and ending on 1st July, 1987, (b) firm evidence making upsurgings vis-a-vis the petitioner herein, faking his identity vis-a-vis the legatee, under a testamentary disposition executed, by late Sh. Kushok Bakula. 4. Kushok Bakula. 4. The learned Additional Advocate General has contended with vigour, of, with the petitioner, in the apposite form, prescribed, under the Registration of Foreigners Rules, 1939, for registration of foreigners, hence scribing entries therein, in respect of his nationality being “Tebetan” also in respect of his being born on 1967 at Ladakh; (b) whereas, in contradistinction thereto, in his election identity card issued by the Election Commission of India, his propagating, his date of birth, to be 1961; (c) in the passport issued by the Government of India vis-a-vis the petitioner, his unfolding therein, his date of birth as 3.4.1960. (d) Thereupon, the aforesaid contradictory reflections occurring in the afore referred documents, stand espoused by him to (i) render vulnerable to grave skepticism, the affinity of identity of the petitioner vis-a-vis the legatee, under the testamentary disposition executed by late Sh. Kushok Bakula; (ii) with the concomitant effect of the prosecution being empowered, to, clinchingly prove the charge against the accused. 5. Be that as it may, the Investigating Officer concerned, during the course of his holding investigations vis-a-vis the allegations made against the petitioner, in the apposite complaint, had collected from, the Tebetan SOS Children's Village School located at Leh Ladakh, a certificate, bearing consonance with the apposite register maintained at the aforesaid school, wherein, reflections are held, of, the petitioner being born on 03.04.1960. In the relevant leaf, of, the school register, the father of the accused/petitioner herein is disclosed to be one Tashi. The Investigating Officer concerned, has not been, able to collect any firm evidence, in respect of the reflections occurring in the relevant leaf of the school register, being un-relatable to the petitioner herein, rather all the descriptions finding occurrence therein, bearing affinity with the identity of a person other than the petitioner. Absence of collections of the aforesaid firm evidence vis-a-vis all the reflections occurring in the apposite leaf of the school register, not, bearing congruity with the descriptions of the petitioner herein, cannot, firmly nail any prima facie conclusion of the petitioner faking his identity. Contrarily, non collection thereof, spurs a firm derivative, of, the petitioner studying at Tibetan SOS Children's Village School, located at Ladakh also entry(ies) in respect of his date of birth reflected therein, to be 03.04.1960, hence, holding accuracy. Contrarily, non collection thereof, spurs a firm derivative, of, the petitioner studying at Tibetan SOS Children's Village School, located at Ladakh also entry(ies) in respect of his date of birth reflected therein, to be 03.04.1960, hence, holding accuracy. The effect of this Court imputing accuracy to the reflections vis-a-vis the date of birth of the petitioner, occurring, in the relevant leaf of the school register, maintained, at Tibetan SOS Children's Village School, hence, render contradictory therewith occurrences, in the documents alluded to by the Additional Advocate General, especially with respect to the date of birth of the petitioner, to be thereupon subsumed also theirs being rendered inefficacious. The reason for so concluding, is, of, (i) the reflections in the relevant leaf of the school register, holding consonance with the recitals vis-a-vis the date of birth, of the petitioner, borne in the pass port issued by the Government of India, (ii) corollary whereof, is, of any reflections in contradiction thereof, borne in the voter Identity Card issued by the Election Commission of India AND also borne in the apposite form scribed by the petitioner under the Registration of Foreigners Rules also getting benumbed, given all the reflections borne therein, hence, arising from unawareness of the petitioner with respect to his exact date of birth. More so, when for reasons aforesaid, the Investigating Officer has been unable to de-link, the identity of the petitioner, as, unfolded in the relevant leaf of the school register vis-a-vis the identity of the petitioner herein. 6. In aftermath, with the petitioner being evidently proven to be born on or after 26th January, 1950 but before 1st day of July, 1987, thereupon, he is entitled to the statutory mandatory provisions engrafted in Section 3 of the Citizenship Act, 1955, also thereupon he is to be firmly concluded to be a citizen of India. With a further sequel of the apposite statutory permission obtained by the petitioner, being not, shrouded with any element of fraudulence or any element of suspicion. 7. For the foregoing reasons, the instant petition is allowed and the order rendered by the learned Special Judge concerned, on 19th January, 2017 is quashed and set aside. All the pending applications stand disposed of. Records be sent back forthwith.