IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE BUDIHAL.R.B CRIMINAL PETITION No.6014 OF 2017 BETWEEN:
Khadija @ Swapna @ Khadija Khanom, W/o Imtiyaz, S/o Inush Shaikh, Aged 24 years, R/at Munirampur, Thana Parakhujara Post, Digdanamohili Taluk, Josar Dist, Bangaladesh.
Also R/at Gudhal Road, Behind HKN Subhas Nagar, Hubli, Old Hubli, Dharwad, Karnataka – 580 024.
(By Sri.Mohammed Javeedulla, Advocate for Sri.Veeranna.G.Tigadi, Advocate) AND:
1. State of Karnataka, By Vijay Nagar Police.
2. Foreigners Regional Registration Officer, Bureau of Immigration, Govt. of India, Ministry of Home Affairs, BMTC building, Shanthinagar, Bengaluru.
…Petitioner (Respondent No.2 inserted as per vide court order dated 29.08.2017) (By Sri K.Nageshwarappa, HCGP for R-1;
…Respondents Sri.Krishna S Dixit, Asst. Solicitor General of India for R-2) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.388/2016 (S.C.No.1380/2016) of Vijayanagara Police Station, Bengaluru for the offence p/u/s 12(c) and 12(1) of Foreigners Act.
This Criminal Petition coming on for Orders this Day, the Court made the following:
O R D E R This petition is filed by the petitioner/accused under Section 439 of Cr.P.C. seeking her release on bail for the alleged offences punishable under Sections 14 A, B of Foreigner Act 1946, Section 12(c) and 12(1) of the Passport Act 1957, registered in respondent-police station Crime No. 388/2016.
2. Brief facts of the case as per the complaint averments is that ACP, Vijayanagar Sub-Division was registered as memo No. VAC/M/148/2016 and same was registered before Commissioner of Police East Division No CB, Ad CP(E)/CC/88/2016, dated 06/07/2016 stating that one Mr.Hemant, resident of Vader No. 103, 3rd Cross, Cauveripur, Madeshwar Rao Nagar, Garage, Pattergara Palya, Srinivas Nagar, Bangalore is involved in prostitution business, by illegal detention of one girl by name Swapna resident of Bangladesh, as such the staff of the respondent police reached the spot at about 2 PM on 02.08.2016 and conducted a raid and after confirming the names of Hemant and Swapna, they were produced before ACP. After due enquiry the apprehended person revealed his name as Hemant, S/o Nagaraju, aged about 28 years, Rat No.3, 13th Cross, Pattegara Palya, Vijayanagara, Bangalore bearing mobile No.9964051655, permanent resident of No.5, 12th Cross, Nagragonahalli, Belliekre Post, K.R.Pura Post, Mandya District. Similarly they apprehended the person by name Smt. Khadija @ Swapna, Wo Imtiyaz, 24 years, R/at No.3, 13th Cross, Pattegara Palya, Vijayanagara, Bangalore bearing mobile No.9964051655, permanent resident of Munirampur Thana, Parakhujara Post, Digdanamohili Taluk, Josar District, Bangladesh.
3. After due enquiry, it was confirmed that she was hailed from Bangladesh and some nine months back she came to India From Bangladesh and reached the Bangalore via Calcutta and staying with Hemanth. More over she did not posses any passport or visa on her name as such she was staying illegally in India. Based on said complaint, case came to be registered against present petitioner.
4. Heard the arguments of the learned counsel appearing for the petitioner/accused and learned Assistant Solicitor General of India for respondent No.2 and so also the learned High Court Government Pleader appearing for the respondent-State.
5. Learned counsel for the petitioner made submission that petitioner has produced Adhaar Card and also Pan Card wherein it goes to show that she is the citizen of this Country, born at Hubli and even he made submission that birth certificate extract of petitioner is given which shows that birth place of the petitioner as Hubli in Dharward District. In spite of such material produced before the Court below, even then Court has not believed the case of the petitioner and rejected the bail petition. Learned counsel also submitted that alleged offence is not exclusively punishable with death or imprisonment for life. Hence, by imposing reasonable conditions petitioner may be enlarged on regular bail.
6. Per contra, the learned Assistant Solicitor General of India representing Passport Authority opposed the petition by making submission that looking to the material produced by the petitioner herself it goes to show that she is not citizen of this Country. She gave entry to India without having any passport and Visa and illegally staying in India. Learned counsel referring to the material produced by the petitioner i.e. Aadhar Card, made submission that Aadhaar Card cannot be the basis to come to the conclusion that she is citizen of India. In this connection, the Assistant Solicitor General of India referred to Section 9 of Aadhaar Act and made submission that the petitioner has to produce some other authenticated material to establish her case that she was born at Hubli and citizen of this Country. He also made submission that in the entire State of Karnataka the Rations Cards are issued to each and every family and nothing prevented the petitioner to produce the Ration Card to show that the name and address, who are the other family members of petitioner. Further he submitted that though the Hon’ble Court has given sufficient time in spite of that, Ration Card is not produced and today the learned counsel for the petitioner is making submission that she is not having ration Card. He also refers to the entries in the Aadhar Card as well as in the Pan Card with reference to the cause title furnished before concerned Sessions Judge and cause title address furnished in this petition which clearly shows that petitioner does not have correct address even according to herself. He made further submitted that she is wife of one Imtiyaaz, in this connection learned counsel draws the attention of this Court to para-15 of the petition, wherein, she herself stated that she is divorcee. In spite of such pleading, still she is using name of such person as her husband. It is nothing but misrepresentation to the Court to get bail order. Hence, Assistant Solicitor General of India also relied upon the judgment in the case of Sarbananda Sonowal (II) Union of India reported in 2007 1 SCC page-174 and drawn the attention of this Court at relevant para-62. Hence, he made the submission that whenever a person is claiming that he is citizen of this Court, he is required to give evidence of proof of the same as per the particulars observed by the Hon’ble Apex Court in the said paragraph. Hence, in view of these, Assistant Solicitor General of India submitted that petitioner has not made out the case to allow the petition for grant of regular bail. Hence, he sought to rejection of the bail petition.
8. Learned HCGP too opposed the petition contending that looking to the averments made in the complaint and the address furnished in the cause title which itself goes to show that the petitioner is not definite about her permanent address in this Country. Therefore, contentions of the petitioner cannot be believed. Hence, he also submits that the petitioner is not entitled to be granted with bail. He also adopted the other arguments advanced by the Assistant Solicitor General of India representing Passport Authority.
9. I have perused the grounds urged in the bail petition, FIR complaint and also other materials produced by the learned counsel for the petitioner.
10. On perusal of address furnished by the present petitioner before Sessions Judge, CCH-57 wherein her name is shown as Smt.Khadija @ Sapana, aged about 24 years, Ro Josar District, Bangladesh. Looking to the address furnished in the cause title of the present petition, she mentioned her name as Khadija @ Swapna @ Khadija Khanom, W/o Imtiyaz, R/at Munirampur, Thana Parakhujara Post, Digdonamohili Taluk, Josar District, Bangladesh. However, she also mentioned that she is residing at Gudhal Road, Behidn H K N Subhash Nagar, Hubli, Old Hubli, Dharwad. Looking to this aspect of the matter, referring to the addresses furnished in the cause title of both the petitions before the Sessions Court and before this Court, they are not consistent with each other. Before the Sessions Court, it is not mentioned that she is residing at Hubli and no such address has been provided. Only Bangladesh Address has been mentioned. In this petition, though she has mentioned that she is resident of Bangladesh, below that, she has also mentioned that she is residing at Hubli. If she is really residing at Hubli, nothing prevented her to mention the same address before the learned Sessions Judge, CCH-57, Bangalore when the petition was moved first in the S.C.No.1380/2016 but its not done in this case.
11. Apart from that for the sake of appreciation of the contentions of petitioner herein, even if it is taken as address mentioned in the cause title of this petition is taken to be true, she has mentioned in this petition that she is wife of Imtiyaz but in para-15 of the petition, petitioner, herself submitted that petitioner is a woman and long back she was divorced from her husband, as such she is only bread earner to her family as she is having school going children. At present situation her children facing lot of problems without her mother and she is deeply rooted in society and tied up with community, moreover they don’t have any bad antecedents prior to this false case, such being the position she will not abscond or evade during the trial.
12. Looking to the paragraph-15 of the petition, prima-facie goes to show that one Mr.Imtiyaz has divorced her, however, still it is mentioned that said Imtiyaz is her husband as on today.
13. I have also perused the Aadhaar Card and also Pan Card. Looking to the name and address in said Aadhaar Card, it is not consistent with what she has furnished in the cause title of both petitions. Still there is inconsistency in the Aadhar Card.
14. I have also perused Section-9 of the Aadhaar Act, 2016 which reads as under “The Aadhaar number or the authentication thereof shall not, by itself, confer any right of, or be proof of, citizenship or domicile in respect of an Aadhaar number holder.”
Therefore, looking into the principle in the said Section of Aadhaar Act, 2016, it shows that Aadhaar Card cannot be taken as sole basis for the proof of citizenship or regarding domicile. Therefore, it requires other authenticated documents to be produced by the petitioner in proof of the same.
15. I have also perused the judgment of Hon’ble Apex Court in case of Sabrananda Sonowal(II) V/s. Union of India reported in 2007 1 SCC 174 in para-62 which reads as under 62. It was stated (Sonowal I case, SCC PP.695-96, para 26) “26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of particular country. In order to establish one’s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The Court noticed that even in criminal cases, under certain statues, the burden of proof would be on the accused.”
Therefore, looking to the requirements for a person to claim the citizenship he/her has to produce the particulars of date of birth, place of birth, name of his parents, their place of birth and citizenship and some times place of birth of his grand parents also may be relevant under Section 6(A)(1)(d) of the Citizenship Act, 1955.
16. Therefore, even looking to the principles in the decision of Hon’ble Apex Court reported supra, all these particulars are required to any person to establish his citizenship of this Country. Looking to the birth extract produced in the case, the particulars of grand parents is not mentioned. Therefore, even the birth certificate said to be of the present petitioner regarding her birth place is Hubli, cannot be acceptable at this stage unless there are some other material produced.
17. Learned counsel for the petitioner made it clear to the Court that so far as Ration Card is concerned, it is not issued to the present petitioner. Nothing prevented the petitioner at least to produce the Ration Card of her family members like her parents or grand parents before this Court.
18. Looking to the allegations as against the present petitioner herein that these offences are under Foreigner Act, 1946 and Passport Act, 1957 which affects the security and safety of this Court.
19. Therefore, under these circumstances, strict compliance of the requirements of said provisions is necessary and the substantial compliance cannot said to be compliance of the requirement of law. Apart from that, she being Bangladesh national, in case of her release she may abscond and may also involve in committing similar offences in future also. Considering these aspects of the matter, I am of the opinion that it is not a case for grant of bail and accordingly, petition is hereby rejected.
Learned counsel at this stage submits that memo seeking for return of birth certificate. Returned the same by retaining the copy of the same.
Sd/- JUDGE SB