IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1630 of 2009()
1. THURAIYAMMA JAYAKUMAR,
... Petitioner
2. JAYAKUMAR JAYA GAURI,
Vs
1. THE STATE OF KERALA,
... Respondent
For Petitioner :SMT.MAJIDA.S
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/06/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.1630 of 2009
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Dated this the 19th day of June, 2009
O R D E R
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Petitioners, mother and daughter are Sri Lankan Nationals. At a
time when petitioner No.2 was a young girl she, on the strength of
appropriate entries in the passport of her mother (petitioner No.1)
came to India and stayed in India on the strength of temporary
residential permit in connection with the study of petitioner No.2. In
the year 2003 they wanted to return to their mother land and
allegedly on the strength of forged Exist Permit purporting to be issued
by FRO Thiruvannamalai, Identity Certificate purporting to be issued
by the District Collector, Thiruvannamalai and Emergency Travel
Document purporting to be issued by the Deputy High Commissioner
of Sri Lanka at Chennai came to Thiruvananthapuram airport on
18.10.2003 and cheated the Immigration authorities at the airport.
Feeling suspicious about the genuineness of the above said documents
the airport authorities took up the matter. Investigation allegedly
revealed that the above said documents were forged. Inspector of
CBCID Thiruvananthapuram submitted final report against the
petitioners in the court of learned Chief Judicial Magistrate,
Thiruvananthapuram for offences punishable under Sections 3 and 12
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(1A)(b) of the Passports Act, 1967 (for short, “the Act”) and Sections
465, 468 and 471 of the Indian Penal Code (for short, “IPC”).
Petitioners filed C.M.P. No.2802 of 2008 to discharge them under
Sec.239 of the Code of Criminal Procedure (for short, “the Code”).
That petition was dismissed by learned Chief Judicial Magistrate as
per order dated 1.1.2009. This Court in Crl.R.P. No.297 of 2009 set
aside that order and remitted the petition to the learned Chief Judicial
Magistrate for fresh consideration. Learned Chief Judicial Magistrate
heard both sides and passed the impugned order on 17.3.2009
disallowing the prayer of the petitioners for discharge. That order is
under challenge in this revision.
2. Learned counsel for petitioners contends that even on the
allegations made by the charging officer no offence as alleged is
made out and hence petitioners are entitled to be discharged.
Learned Public Prosecutor submitted that the records revealed that the
documents in question were actually forged and attempted to be made
use of by the petitioners to travel beyond India.
3. The charge is that forged Exit Permit purporting to be
issued by the FRO Thiruvannamalai, Emergency Travel Document
purporting to be issued by Deputy High Commissioner of Sri Lanka at
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Chennai and Identity Card purporting to be issued by the District
Collector Thiruvannamalai were used by the petitioners fraudulently
and dishonestly as if the same as genuine and knowing the same to
be forged documents. Counsel for petitioners would argue that
offences alleged are not made out even as per the allegations of the
charging officer. Counsel referred me to the relevant provisions of the
Act.
4. Section 12(1A)(b) of the Act states that whoever not being
a citizen of India holds a “forged passport” or “any travel document”
shall be punishable in the manner stated therein. `Travel document’
is defined in Sec.2(e) of the Act as meaning “a travel document
issued or deemed to have been issued under the Act”.
According to counsel Schedule II Part II of the Act deals with travel
documents which can be issued under the Act. Item No.1 of Part II
Schedule II is Emergency Certificate which concerned citizens of India
abroad, persons who have produced prima facie evidence of Indian
citizenship or citizens of India abroad whose passports have been lost,
stolen or damaged and persons of Indian origin. In this case that item
is not applicable as petitioners are admittedly Sri Lankan Nationals.
Item No.2 refers to Certificate of Identity in regard to Stateless persons
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residing in India, foreigners whose country is not represented in India
or whose national status is in doubt and persons exempted under
Sec.22 of the Act from the operation of the provisions of clause (a) of
sub-sec. (2) of Sec.6. That item is not applicable to the case on hand
since Sri Lanka is represented in India and petitioners are neither
Stateless persons nor persons exempted under Sec.22. Therefore
counsel argues that Sec.12(1A)(b) of the Act has no application.
According to the learned counsel definition of `travel document’ given
in Sec.3(b) of the Act has no application since that definition is
available only for the purpose of that Section and Sec.12(1A) does
not take in Sec.3 of the Act.
5. Section 2(e) of the Act defines `travel document’ as
meaning “travel document issued or deemed to have been
issued under this Act”. Section 3(b) of the Act defines, though for
the purpose of that Section “travel document” as including “a travel
document which having been issued by or under the authority
of the Government of a foreign country satisfies the
conditions prescribed”. Going by Sec.2(e) of the Act which I have
extracted above, not only travel document issued under the Act but
also which are “deemed to have been issued under the Act” come
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within the purview of that definition. So far as Sec.3(b) is concerned,
it is clear that definition given there is only an inclusive definition. The
definition given therein is not exhaustive .
6. In this case it is not disputed that petitioner No.2 came to
India in the year 1989 along with her mother, petitioner No.1 at a time
when she was a young girl and did not then have or require a separate
passport. It was sufficient that in the passport of petitioner No.1, her
mother, relevant entries concerning her were made. Now petitioner
No.2 has crossed the age of 15 years. Rule 19 of the Passports Rules,
1980 states that the condition subject to which a passport or travel
document shall be issued or renewed shall be as set out in Schedule V.
Schedule V deals with conditions relating to the issue of passport and
travel document. Clause (8) of Schedule V says that children whose
names are included in the passport or travel document of their parents
or legal guardian should apply for a separate passport on attaining the
age of 15 years. In this case at the time petitioner No.2 attempted
to go to Sri Lanka through Thiruvananthapuram airport she had
crossed the age of 15 years. Therefore she could not have gone
outside India except with a separate passport. There is no case that
she had a passport when she attempted to go to Sri Lanka in the year
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2003. There is also no case that except the travel document
(allegedly forged) she and petitioner No.1 brought to the airport she
had any other document enabling her to go outside the country. No
person can go out of India except with a passport or other travel
document recognised under the Act. One of the documents made use
of by the petitioners in their attempt to go out of India is an Exit
Permit purporting to be issued by the FRO Thiruvannamalai and the
Emergency Travel Document purporting to be issued by the Deputy
High Commissioner of Sri Lanka at Chennai. Those documents could
only be treated as travel documents deemed to be issued under the
provisions of the Act. Therefore the contention that no offence under
Sec.12(1A) is made out cannot prima facie be accepted.
7. Now coming to the offences alleged under the IPC, there is
no case that the documents in question were forged by or with the
connivance of any of the petitioners. Even as stated by one of the
witnesses cited by the prosecution another person had managed to
procure the documents for the petitioners. Investigating officer
could not trace that person. Going by the records produced by the
respondent along with the final report under Sec.173 of the Code,
there is no material on record to show that petitioners had forged the
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documents in question. If that be so, charge under Sec.465 IPC cannot
stand. Consequently, charge under Sec.468 IPC also cannot stand
since that charge can stand only if the documents in question were
forged by the petitioners.
8. But the charge under Sec.471 IPC stands on a different
footing. That provision penalises use of a forged document as
genuine and what is required by the prosecution to be proved is only
the following ingredients: (1) The document in question is a forged
one; (2) Accused knew or had reason to believe the said document to
be a forged one and (3) The accused has fraudulently or dishonestly
used that document as genuine. In this case materials on record
would prima facie show that knowing or having reason to be forged
documents, petitioners used the same as genuine. If that be so,
charge under Sec.471 IPC cannot be said to be groundless so as to
enable a discharge under Sec.239 of the Code.
9. Result of my above discussion is that petition to the extent
it concerned the charge for offences punishable under Secs.465 and
468 IPC should succeed. The prayer for discharge for offences
punishable under Sec.3 read with Sec.12(1A)(b) of the Act and Sec.471
IPC cannot stand.
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Resultantly this revision is allowed in part to the following extent:
The petition to the extent it concerned
offences punishable under Secs.465 and 468
IPC is allowed. Petitioners are discharged of
those offences. Petition to the extent it
concerned offences punishable under Sec.3
read with Sec.12(1A)(b) of the Act and 471, IPC
will stand dismissed.
Learned Chief Judicial Magistrate is directed to expedite the trial
and disposal of this case giving utmost priority to it since the
petitioners are foreign Nationals and wanted to go to their native place
after the proceedings are over. Learned Chief Judicial Magistrate
shall decide the case untrammeled by any of the observations
contained in this order as to the nature of the offence allegedly
committed by the petitioners.
THOMAS P.JOSEPH, JUDGE.
vsv