IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.798 OF 2019 BETWEEN 1. KASIFF SHAMSHUDDIN @ KASIFF S/O.SHAMSUDDIN AGE:30 YEARS R/O.E-20, CHAKRAPHOT, KARACHI DISTRICT PAKISTAN – 74600.
PRESENTLY R/AT.NO.530 91ST CROSS, NEAR TELEPHONE EXCHANGE K.S.LAYOUT, 1ST STAGE BENGALURU – 560 032.
2. SMT.KIRAN GULAM ALI W/O.KASIFF SHAMSHUDDIN AGE:30 YEARS R/O.E-20, KORANGI NO.1 NEAR NOORANI MASJID CHAKRAPHOT, KARACHI DISTRICT PAKISTAN – 74600.
PRESENTLY R/AT.NO.530 91ST CROSS, NEAR TELEPHONE EXCHANGE K.S.LAYOUT, 1ST STAGE BENGALURU – 560 032.
... PETITIONERS (BY SRI.SIRAJUDDIN AHMED, ADV., SRI.VASIM PASHA, ADV.,) AND:
1. STATE OF KARNATAKA BY SHO KUMARASWAMY LAYOUT POLICE STATION BANGALORE – 560 020.
2. STATE OF KARNATAKA BY BANASHANKARI POLICE STATION BANGALORE – 560 001.
BOTH REPT. BY SPP HIGH COURT BUILDING BANGALORE – 560 001.
. ... RESPONDENTS (BY SRI.PRABHULING K.NAVODGI, ASG A/W. SRI.ADITYA SINGH, CGC AND SRI.S.RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO PASS AN ORDER OF SENTENCES IN BOTH THE CASES SHALL RUN CONCURRENTLY IN C.C.NO.19945/2017 PASSED BY THE XLIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU AND C.C.NO.20612/2017 PASSED BY THE III ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners who have been convicted in C.C.Nos.19945/2017 and 20612/2017 by the Jurisdictional Magistrate in exercise of the power vested under Section 265-E of Cr.P.C. and under Section 241 of Cr.P.C. for the offences punishable under Sections 120-B, 420, 419, 465, 468, 472 and 511 and Section 14(a) to (c) of Foreigners Act and Section 5 of Foreigners Registration Act and have been imposed with sentence of imprisonment for the said offences are seeking for sentence so imposed to run concurrently in these two cases instead of consecutively. The higher sentence of imprisonment issued in each of these two cases is 21 months (1 year 9 months) and in both these cases, learned Magistrate has ordered that punishment so imposed should run concurrently. Petitioners in both these cases had sought for plea bargaining and had pleaded guilty. Accordingly, sentence came to be imposed in both the cases.
2. It is the fair submission of learned counsel appearing for petitioners that petitioners had entered the territory of India without any valid travel document or in other words their entry into the territory of this Country was by illegal means. The jurisdictional Police namely, Kumaraswamy Layout Police during interrogation, found that first petitioner had admitted that he had eloped from Pakistan with second petitioner and married her and has been residing at Bangalore without any valid documents. In other words, the illegal entry through which petitioners entered the territory of India had resulted in their apprehension and prosecution initiated against them under the Foreigners Registration Act and Indian Penal Code.
3. As noticed herein above, both petitioners had sought for plea bargaining and had pleaded guilty of the offences alleged against them in C.C.No.19945/2017 and C.C.No.20612/2017 respectively. Based on plea bargaining, sentences came to be imposed on petitioners in both cases.
4. It is rather very intriguing that illegal entry into the territory of India by petitioners have remained unchecked for almost for a long period and it is only during the year 2017, Jurisdictional Police were able to nab the petitioners and initiated prosecution against them. As such, they are required to be deported forthwith from the territory of India, as otherwise, it would amount to granting premium to such person to stay in India who had entered the territory of India illegally and allowing such persons to be detained either in the prison or otherwise, would not be in the interest of tax payers of this Country. The administration bottlenecks even if any, in such circumstances will have to move at extreme speed, rather than at snails pace. Allowing a person to continue to reside in this Country for having gained illegal entry would definitely result in tax payers money being spent on such persons.
5. In this background, this Court has heard the arguments of Sri.Prabhuling K. Navadgi, learned Additional Solicitor General of India in extenso. Though he would submit that until and unless a communication is received from the Embassy or the Government of that Country, to which the persons belong to, they would not be able to take steps namely, the Office of Foreigners Regional Registration, would not be able to deport them is a submission which cannot be accepted for reasons more than one:-
Firstly, when a person who has entered the territory of India by illegal means, it would incumbent upon the concerned Authorities to take immediate steps for deporting such persons to the Country to which they belong by taking all such steps by interacting with the officials of respective Government.
Secondly, even after the order having been passed by jurisdictional Court, if such persons are allowed to continue to stay in this Country by undergoing imprisonment (for gaining entry illegally) or were to remain outside, it would not only amount to granting premium to them but would also recognize their stay indirectly and of course, they are required to be tried for any other offence. As such, this Court is of the considered view that if the stay of petitioners are allowed to continue in the territory of India, it would be contrary to the language of Section 14 of the Foreigners Act, 1946.
6. Now coming to the core issue of the instant case namely, as to whether sentence imposed on the petitioners should run concurrently or otherwise, it requires to be noticed that petitioners in the above referred two cases namely, C.C.Nos.19945/2017 and 20612/2017 who were in judicial custody, were produced before the respective Magistrates on the respective dates and after drawing up of mutually satisfactory disposition report as contemplated under Section 265-D Cr.P.C and after hearing learned Advocates appearing for both parties and also by taking into consideration the memo filed on behalf of petitioners (accused Nos.3 and 4 in both cases), learned Magistrate has convicted petitioners in each of the cases by separate judgments dated 27.04.2018 and 14.01.2019 and imposed the sentences accordingly. In C.C.No.19945/2017, petitioner has undergone the sentence for more than 12 months and also period of detention has been ordered to be set off. In other words, substantive sentence of 21 months has been completed in C.C.No.19945/2017.
7. In the above said cases, learned Magistrate, as already noticed herein above, has imposed sentences independently and though a plea was made in C.C.No.20612/2017 by the petitioners that order of punishment to be imposed to run concurrently with the punishment already imposed in C.C.No.19945/2017, learned Magistrate has refused to do so. However, no reasons are forthcoming for refusal and obviously, on account of petitioners having pleaded guilty.
8. The above said proceedings were pending in two different Courts. Petitioners have substantially completed the sentences and both petitioners being of young age and have expressed their willingness to go back to their country and also having admitted to have gained entry into territory of India illegally, this Court is of the considered view that sentences imposed by XLIV Additional Metropolitan Magistrate, Bengaluru in C.C.No.19945/2017 and III Additional Metropolitan Magistrate, Bengaluru in C.C.No.20612/2017 requires to be ordered to run concurrently instead of those sentences to run one after another or consecutively.
9. For the aforestated reasons, I proceed to pass the following:-
ORDER i) Criminal petition is allowed.
ii) Order of sentence dated 05.05.2018 passed by the XLIV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.Nos.19945/2017 and order of sentence dated 14.01.2019 passed by III Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.20612/2017 on petitioners are ordered to run concurrently instead of consecutively and accordingly it is modified. The fine amount ordered to be paid in the peculiar circumstances of the cases is hereby set aside.
iii) Since sentence imposed on the petitioners is 1 year 9 months i.e., 21 months, as they have already undergone, they are required to be released forthwith. On account of petitioners having been convicted for the offence punishable under Section 14(a) to (c) of Foreigners Act, their continuation of stay in the territory of India would not be just and proper and they are required to be deported forthwith on or before 05.05.2019.
iv) Foreigners Regional Registration Office (FRRO) as well as Ministry of Home Affairs shall take immediate steps to deport the petitioners, after securing their custody from Superintendent of Bengaluru Central Jail, Parappana Agrahara, Bengaluru.
v) Superintendent of Bengaluru Central Jail, Parappana Agrahara, Bengaluru shall ensure that petitioners be handed over to the custody of Pakistan Officials and render all assistance to the Foreigners Regional Registration Office (FRRO) and Ministry of Home Affairs in this regard.
vi) It is reported by learned HCGP that passports of petitioners came to be seized during the course of investigation by the jurisdictional Magistrate. Hence, passports of the petitioners is ordered to be handed over to the Foreigners Regional Registration Office (FRRO) forthwith.
SD/- JUDGE VMB