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2020 DIGILAW 282 (KER)

Alex C. Joseph v. Central Bureau of Investigation

2020-03-05

SUNIL THOMAS

body2020
JUDGMENT : 1. Revision petitioner is the first accused in C.C.No.1 of 2016 of Special Judge (SPE/CBI), Thiruvananthapuram for offences punishable under sections 120B r/w 419, 420, 201 and 202 IPC under section 13(2) r/w 13(1)(d) of the PC act and 12(1)(a)(b) and (d) of the Indian Passport Act. 2. The case was instituted on a final report filed by CBI in RC.No.9(E)/2014/CBI/SCB/ TVPM registered by re-registering the FIR in Crime No.2228 of 2011 of Palarivattom Police Station. Investigation was later taken over by the CBI. 3. The crux of the prosecution allegation was that the petitioner had allegedly smuggled foreign made cars through Cochin Port during the period 1997 to 2000. In connection with that, COFEPOSA detention order was issued against him. Look out notice was issued, since he was not available pursuant to the COFEPOSA warrant. While so, on getting secret information that, he was travelling to Hyderabad from Dubai on a fake passport on 06.11.2011, he was intercepted, when he landed at Hyderabad International Airport. Customs authorities and emigration airport authorities questioned him and found in his possession fake passport No.T 389522 issued in the name of one Abey John, Malad, Mumbai. He was handed over to the Kerala Police on 08.11.2011. He was received by the second accused, who was the then Inspector of Police, Thiruvalla Police Station. He was taken to Kerala for being produced before the DySP, Thiruvalla and thereafter, he was taken to Thiruvananthapuram, wherein, he was detained under COFEPOSA. According to the prosecution allegation, the fake passport was handed over to the second accused along with other details. On the way, accused Nos.1 and 2 entered into a criminal conspiracy and with the intention of causing disappearance of the crucial document involved, which was the forged passport in the name of Abey John, the second accused purportedly handed it over to the first accused who later screened it or destroyed it. The above passport could not be recovered thereafter. 4. Crime was registered by the Palarivattom police which was later taken over by the CBI for investigation. The prosecution charge was that the first accused procured passport No.T 389522 in the name of Abey John and got it renewed in 2000. It was again renewed in 2005 at Dubai. The above passport could not be recovered thereafter. 4. Crime was registered by the Palarivattom police which was later taken over by the CBI for investigation. The prosecution charge was that the first accused procured passport No.T 389522 in the name of Abey John and got it renewed in 2000. It was again renewed in 2005 at Dubai. He impersonated himself as Abey John and used the fake passport for travelling on various occasions so that he could escape from detention under COFEPOSA. On 06.11.2011, he used it and moved to Hyderabad from Dubai. He impersonated himself before the emigration authorities at the Rajiv Gandhi International Airport to save himself from the COFEPOSA detention order issued against him and thereby allegedly committed offence punishable under sections 419 and 420 IPC. It was further charged by the prosecution that, in the course of the journey of the second accused with the first accused, sometime in between 07.11.2011 and 10.11.2011, they entered into a criminal conspiracy to hand over passport to the first accused and to cause its disappearance, second accused used his official position to screen the first accused from legal procedure. It was alleged that he compromised his duty for undue advantages and facilities offered by the first accused to the second accused. It was further alleged that the first accused destroyed or concealed the passport obtained in the name of Abey John. By the above conduct, both the accused committed offences punishable under sections 120B r/w 201 IPC r/w 419, 420, 204 IPC, 12(a)(b)(d) of the Passport Act 1967 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988. 5. After the final report was laid, first accused filed an application as Crl.M.P.No.175 of 2016 and second accused filed M.P.No.118 of 2017 seeking discharge under section 239 Cr.P.C. Both the applications were dismissed by the learned Special Judge by a common order. This order is under challenge at the instance of the accused. Even though Crl.R.P.No.483 of 2018 was filed by the second accused challenging the dismissal of M.P.No.118 of 2017, it was dismissed for non prosecution. 6. Heard the learned senior counsel appearing for the first accused and learned Special Prosecutor for the CBI. 7. The crux of the contention of the learned senior counsel for the first accused was that, passport was obtained by the revision petitioner allegedly at Mumbai. It was got extended at Dubai. 6. Heard the learned senior counsel appearing for the first accused and learned Special Prosecutor for the CBI. 7. The crux of the contention of the learned senior counsel for the first accused was that, passport was obtained by the revision petitioner allegedly at Mumbai. It was got extended at Dubai. First accused used to travel to various places. It was alleged that, on the crucial date, he travelled from Dubai to Hyderabad with the above passport. On the basis of above facts, it was contended that, none of the allegations in relation to the offence under the Passport Act was committed in Kerala, much less within the jurisdiction of the Palarivattom Police Station, where the crime was registered. It was alleged by the prosecution that the first accused was taken from Hyderabad to Thiruvalla and thereafter, to Thiruvananthapuram. None of the allegations raised by the prosecution was committed within the jurisdiction of Palarivattom Police Station, wherein the crime was registered or within the jurisdiction of the Special Court, it was contended. It was further contended by the learned senior counsel that, there was absolutely no material to suggest the commission of any of the offences alleged in the final report. 8. Answering the above contentions, learned Special Prosecutor for the CBI contended that, crime was validly registered, properly investigated, that materials revealed commission of offence by the accused and that the court below had jurisdiction to entertain the final report. 9. In the nature of the allegations, the salient features of the crime will have to be evaluated to answer the above contentions. 10. The stand taken by the second accused seems to be that, he had handed over the passport to the first accused and a receipt was obtained. According to him, he handed over the passport since the first accused was not involved in any other crime and that, passport was his property. 11. Prima facie, there are materials suggesting that the accused was using the passport obtained in the name of another person. Prosecution is relying on the statement of CWs.11, 12, 13, 14, 15, 16, 17, 18 and 19 to establish the fact that the first accused had landed at the International Airport, Hyderabad and was carrying the passport in the name of Abey John, the interception of the accused and the recovery of the passport from him. Prosecution is relying on the statement of CWs.11, 12, 13, 14, 15, 16, 17, 18 and 19 to establish the fact that the first accused had landed at the International Airport, Hyderabad and was carrying the passport in the name of Abey John, the interception of the accused and the recovery of the passport from him. Prosecution is further relying on the statements of CWs.1 and CW2 to establish that, they have accompanied the second accused to Hyderabad, received the custody of the first accused and the passport, issuance of a receipt to the authorities at Hyderabad regarding the receipt of the passport, returned to Thiruvalla with the first accused, production of the first accused before the DySP, Thiruvalla and taking him to Thiruvananthapuram. Prosecution is also relying on the statements of CWs.4, 5 and 7 to establish that, they know the first accused, who was Alex C Joseph and that, he was not Abey John. Prosecution is also relying on other materials to show that, accused was moving around at different places using different names. 12. The entire facts confirm that, passport was a crucial document to establish the case of the accused. According to the prosecution, passport was a material piece of evidence for the prosecution and the second accused was not authorized to hand over the passport to the first accused. There was no direction from any authority to return the passport. In fact, passport was received by the second accused from Hyderabad after its due acknowledgment. According to the prosecution, inspite of the seriousness and the significance of the passport, second accused handed over the passport to the first accused malafide. The alleged entrustment of passport to the first accused was also not entered in the GD diary of Thiruvalla police station, it was alleged. 13. It is in the above background, the prosecution alleges that, accused nos.1 and 2 entered into a criminal conspiracy to protect the first accused from criminal prosecution and to destroy or conceal the material piece of evidence. Being a pubic servant, the allegation against the second accused is one within the realms of PC Act. The second accused is prosecuted along with the first accused for the above offences under the PC Act with provisions under the IPC. The first accused is prosecuted independently for the provisions under the Passport Act. 14. Being a pubic servant, the allegation against the second accused is one within the realms of PC Act. The second accused is prosecuted along with the first accused for the above offences under the PC Act with provisions under the IPC. The first accused is prosecuted independently for the provisions under the Passport Act. 14. It seems that DRI launched the criminal proceedings by lodging the FIR at Palarivattom. Thereafter, investigation was taken over by the CBI and the FIR was re-registered. After completion of investigation, final report was laid before the competent court within whose jurisdiction a part of the entire offence took place, sometime in between 07.11.2011 and 10.11.2011 and also at the some place in between Hyderabad to Thiruvalla while on their journey and thereafter while proceeding to Thiruvananthapuram. Since the precise place at which the passport was handed over or it was reportedly destroyed or concealed is not clear, there is absolutely no jurisdictional issue. Other offences relating to obtaining forged passport was only ancillary to the main offences which include one under the PC Act. Considering the above facts, I feel that, there is no scope for any interference in the Crl.R.P. Revision fails and it is dismissed.