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SCR.A/973/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 973 of 2008
==========================================
RIZWANA
ASSIF BAJIWALA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
MM SAIYED for Applicant(s) : 1,
MR MA PATEL,
ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
RULE SERVED BY DS
for Respondent(s) : 2,
==========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 03/07/2008
ORAL
ORDER
The
facts of the case stated briefly are that the petitioner herein is
married to one Assif Mahmed Bajiwala who is an Indian National
working at Lusaka, Zambia. It appears that the petitioner who
accompanied her husband to Lusaka after her marriage, returned to
India in 2006 for the delivery of her first child. After the birth
of her daughter Sana, the petitioner was desirous of obtaining a
passport for her daughter so as to take her to Zambia. It appears
that the petitioner?”s husband sent an affidavit stating that he
had no objection to if a passport is issued to his daughter, which
was sworn before the Commission of Oath and stamped by the Second
Secretary (Consular) High Commission of India. The petitioner
submitted the said affidavit along with her application for passport
for her daughter. It appears that the concerned authorities found
something suspicious about the said affidavit, hence the notice of
the concerned District Superintendent of Police was drawn to the
same and upon inquiring with the High Commission of India at Lusaka
(hereinafter referred to as ?Sthe Mission??), they were informed
that the affidavit appears to be false. On sending a reminder, the
authorities were informed that the Clerk in charge of such
affidavits has not maintained proper records, besides it has not
been established that the signature on the affidavit is that of the
local clerk of the earlier Consular Officer. In the aforesaid
premises, a complaint came to be filed against the petitioner for
the offences under sections 199, 200, 471, 114 of the Indian Penal
Code and section 3(12) 1(a) of the Passports Act, 1967 which came to
be registered as a first information report vide Bharuch ??B?”
Division Police Station I C.R. No.23 of 2007. It is this first
information report of which quashment is sought for by this petition
under Article 226 of the Constitution of India read with section 482
of the Code of Criminal Procedure, 1973 (the Code).
Heard,
Mr. M.M. Saiyed learned Advocate for the petitioner and Mr. M.A.
Patel learned Additional Public Prosecutor for the respondents.
The
learned Advocate for the petitioner has submitted that as objection
was raised qua the first affidavit dated 13.10.2006, the petitioner
?”s husband had sent another affidavit stamped by the High
Commission of India, Lusaka, pursuant to which her daughter had been
issued a passport and the petitioner along with her daughter had
joined her husband at Lusaka. Subsequently the petitioner returned
to India in the year 2007 and gave birth to a son named Nadeem to
whom a passport had been issued by the passport authority.
On28.04.2008, while leaving India the petitioner was detained with
her children in connection with the offence referred to hereinabove.
It is pointed out that the husband of the petitioner took up the
matter with the High Commission at Lusaka, pursuant to which the
High Commission has forwarded a communication dated 17th
April, 2008 requesting that the named of the petitioner be cleared
from this case and she be allowed to travel to Zambia.
In
the aforesaid factual background, the learned Advocate for the
petitioner has submitted that the alleged signature of Surinder
Kumar, the then Second Secretary (Consular) High Commission, India
at Lusaka was not put either by the petitioner or her husband. In
connection with the said affidavit, the Indian High Commission had
dismissed the clerk responsible for the wrong; the alleged signature
was put in the office of the High Commission at Lusaka; the contents
of both the affidavits are the same; it is nobody?”s case that the
contents of either of the affidavits are false or incorrect. It is
further contended that looking to the nature of the allegations
against the petitioner, neither the ingredients of sections 199, 200
or 471 IPC nor the section 3 of the Passports Act are satisfied. It
is submitted that in the circumstances, continuance of the
proceedings against the petitioner is an abuse of the process of
law and as such the same are required to be quashed.
On
the other hand Mr. M.A. Patel learned Additional Public Prosecutor
has opposed the petition. The learned Additional Public Prosecutor
has placed on record two communications of the Second Secretary
(Cons), High Commission of India, Lusaka dated 23rd
November, 2006 and 21st March, 2007 which are taken on
record. Both the communications relate to the offence in question.
By the communication dated 23rd November, 2006 it is
confirmed that the affidavit issued by the Mission appears to be
forged. It is further stated that they are making their own internal
enquiries in the matter. It is also stated that they could not
respond earlier as the officer, in whose name the affidavit is
signed, has left the Mission on transfer. In the communication dated
21st March, 2007 it is stated that the mission has
investigated the matter internally and it was found that the
local-based clerk, who was dealing with the subject matter, has not
maintained proper records for issue of this affidavit. That, they
have not been able to establish the authenticity of the signature
either from the previous Consular Officer or from the local-based
clerk. That, both have refused that they signed the affidavit and
that the Mission has since removed the local-based clerk from the
Visa Section of the Mission. It is accordingly submitted that both
the persons concerned with the affidavit in question have denied
that they have signed the affidavit and that as per the Mission the
affidavit appears to be forged, hence, it cannot be said that no
offence as alleged is made out. It is urged that no case is made out
for intervention by this Court, hence the petition deserves to be
dismissed.
A
perusal of the record of the case shows that the first affidavit
i.e. the allegedly forged affidavit, was made on 13.10.2006 and the
second affidavit on the basis of which passport was issued to the
daughter of the petitioner was made on 20.12.2006. Both affidavits
are identically worded. In the circumstances, there is no apparent
reason for the petitioner or her husband to resort to any unlawful
means for making the affidavit. While issuing the new affidavit, the
Mission had by a communication dated 21st December, 2006
requested the Office of the Superintendent of Police, Bharuch to
extend necessary assistance in regard to issue of passport to the
petitioner. It may also be pertinent to note that this communication
is made with reference to the earlier communication dated 23rd
November, 2006. It cannot be gainsaid that if at all the signature
on the first affidavit was forged; the Mission would be most
concerned. The very fact that the Mission itself has request to
extend assistance to the petitioner makes it amply clear that there
is nothing against the petitioner so far as the Mission is
concerned.
It
would also be pertinent to refer to the contents of the
communication dated 17th April, 2008, addressed by the
Second Secretary (Consular) to the D.S.P. Officer, Bharuch B
Division which reads as under:
?SReference
application dated April 9, 2008 from Mr.Bajiwala Assif, copy enclosed
for ready reference.
[2] The
said affidavit dated 13.10.2006 for applying of Passport for new born
daughter (Bajiwala Sana Assif Mahamed) was issued to Mr.Bajiwala
Assif Mahamed by a local employee of this High Commission against
whom a disciplinary action has been taken and she has been dismissed
from the service. Since the said affidavit was sent to India, this
High Commission could not retrieve the same to avoid the harassment
it may cause to the applicant.
[3] Later
on after verifying these facts, the then Second Secretary (Cons) &
HOC, Mr.P.P.Singh issued the correct affidavit No.350/06 dated
20.12.2006 vide his fax No.LUS/Cons/Misc/06 on the basis of which a
passport was issued by the Surat Regional Office to the new born
child ? Bajiwala Sana Assif Mahamed.
[4] In
view of the para 2 above, it is requested that the names of
Mrs.Bajiwala Rizwana Asif (holder of Indian Passport No.G-6813519)
and Mr.Bajiwala Assif Mahmed (holder of Indian Passport No.Z1307302)
may be cleared from this case and Mrs.Rizwana Bajiwala may be allowed
to travel to Zambia.??
A
perusal of the aforesaid communication makes it evident that the
irregularity/illegality if any, was on the part of an employee of
the Mission. Hence, the Mission was also concerned about the
harassment caused to the petitioner on account of the default on
part of the said employee.
In
the background of the facts noted hereinabove, there does not appear
to be any deliberate attempt on the part of the petitioner to
mislead the Passport authorities. Besides, looking to the contents
of both the affidavits, there does not appear to be any valid reason
for the petitioner to file a false or forged affidavit of this
nature. It appears that the petitioner has been penalised on account
of default on the part of an employee of the Mission.
Apart
from the aforesaid factual position, as can be seen from the First
Information Report in question, the offences alleged against the
present petitioner are under Sections 199, 200, 471, 114 of the
Indian Penal Code and Section 3(12)(1)(a) of the Passports Act,
1967. Section 199 of the Indian Penal Code deals with the false
statement made in declaration which is by law receivable as
evidence. A perusal of the provisions of Section 199 clearly shows
that the allegations made in the complaint do not satisfy the
ingredients of Section 199 of the Indian Penal Code. Section 200 of
the IPC deals with using as true such declaration knowing it to be
false. In the facts of the present case, it is evident that there
is no falsity insofar as the contents of the affidavit in question
are concerned. In the circumstances, the provisions of Section 200
also appear to have been wrongly invoked. Section 471 of the IPC
provides for punishment for using as genuine a forged document. In
the facts of the present case, it cannot be said that the petitioner
had any reason to believe that the affidavit in question is forged.
In the circumstances, none of the offences under the provisions of
the Indian Penal Code can be said to be attracted.
As
regards the allegations under the Passports Act, 1967, there appears
to be some mistake as there is no sub-section (12) in Section 3 of
the Act. Besides, looking to the provisions of Section 3 of the
Passports Act, 1967, the offence alleged against the petitioner is
not that she has attempted to depart from India without a valid
passport or a travel document. In the circumstances, even
otherwise, none of the offences alleged can be said to be
constituted against the petitioner.
In
the aforesaid premises, this Court is of the view that continuation
of the proceedings against the petitioner would amount to abuse of
the process of Court. This is therefore a fit case for exercise of
powers under section 482 of the Code.
In
the result the petition succeeds and is accordingly allowed. The
first information report registered vide ?SB?? Division Police
Station, Bharuch I C.R. No.23/07 and all proceedings emanating
therefrom are hereby quashed. Rule is made absolute.
Direct
service is permitted today.
[HARSHA
DEVANI, J.]
parmar*
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