1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1038 OF 2010 Nilesh Haresh Ranani ..... Petitioner. V/s State of Maharashtra ...... Respondent. Mr. J.S. Chandnani for the Petitioner. Mr. A.S. Shitole with Mrs. P.P Bhosale, APPs for the State. CORAM: V. M. KANADE, J. DATE : 23RD APRIL 2010 P.C.:- 1. Rule. Rule is made returnable forthwith. Respondent waives service. 2. By consent of the parties, matter is taken up for hearing. 3. Heard the learned Counsel appearing on behalf of the Petitioner and the learned APP appearing on behalf of the State. 4. Petitioner has filed this Petition under Article 227 of the Constitution of India and under section 482 of the Criminal Procedure Code for quashing the FIR which was registered 2 by Sahar Police Station on 12/7/2008 for the offences punishable under sections 465, 468, 471, 420 of the Indian Penal Code vide C.R. No. 365 of 2008 and the charge-sheet was filed on 15/7/2008. 5. Brief facts are that on 12/07/2008, Petitioner arrived at Sahar Airport and he was proceeding to go to Nairobi by Flight No. KQ-0203 and the scheduled time of departure was 14.20 and from Nairobi he was to go to Dakar, Senegal by Flight No. KQ-0512. He arrived at counter No.16 at about 12.30 noon for immigration check up. One Rupali Patil was on duty at the counter as Immigration Assistant. On verifying the papers of the Petitioner, she found that in the residence permit of De Guinea Bissau Country, the name of the Petitioner was mentioned as “Ramani Nilesh Hanesh” while in the passport his name was shown as “Ranani Nilesh Haresh”. She suspected that the residence permit was forged and fabricated and, therefore, she informed the Duty Officer and during the course of investigation, according to the prosecution, they noticed that he was holding two residence permits; one issued in the name of “Ramani Nilesh Hanesh” and the other issued in the correct name i.e. “Ranani Nilesh Haresh”. 6. It is the case of the Petitioner that there was a typographical error in the said permit and the Petitioner immediately contacted the Consulate Office of the said country who was pleased to correct the mistake and E-mail 3 copy of the corrected residence permit was immediately sent to the Petitioner who took out the print out of the said E-mail which was sent by the Consulate and produced the same before the Immigration Officer. However, on the basis of permit which had the typographical error, an FIR was registered on 12/7/2008 for the offences punishable under sections 465, 468, 471, 420 of the Indian Penal Code at Sahar Police Station. He was arrested and produced before the Court on 12/7/2008 and remanded to police custody till 14/7/2008 and his police custody was extended till 16/7/2008 on which date bail was granted to the Petitioner. When the Petitioner was in police custody, his father produced a letter dated 14/7/2008 issued by the Government of Republic of Guinea-Bissau (Counsellor Embassy of India, Dakar, Senegal) in which letter the correction of the Petitioner’s name was shown. The said letter dated 14/7/2008 was addressed to Mumbai Immigration which is the concerned authority. In the said letter, it is categorically stated that name of the petitioner which is shown in the residence permit viz. “Ramani Nilesh Hanesh” was a mistake of their office. Thereafter, father of the Petitioner again submitted a letter dated 15/7/2008 to the Investigating Officer. The said letter was issued by Ambassador of India to Senegal and in the said letter it was stated that the typographical mistake has been rectified. 7. On 16/7/2008, Petitioner was produced before the learned Magistrate. The Investigating Officer filed copy of 4 the FIR along with relevant documents and it was treated as charge-sheet. 8. The learned Counsel appearing on behalf of the Petitioner submitted that the residence permit produced by the petitioner was genuine and no document was forged. It is submitted that without verifying the doubt which was crept in the mind of the Immigration Officer, Petitioner herein, was arrested and was detained for a period of four days in police custody. Police also had written a letter to the Central Government, asking the Central Government to verify the said fact and even before the verification could be completed, charge-sheet was filed against the Petitioner. The learned Counsel appearing on behalf of the Petitioner submitted that this is a clear case of abuse of process of law and clearly amounted to miscarriage of justice. A typographical error had crept in the residence permit which was issued by the said country which was immediately corrected and the said authorities had sent E-mail giving correct residence permit. Over and above, the Petitioner also had temporary residence permit for a period of three months in the correct name. In spite of that, Petitioner was detained at the Airport and was later on kept in police custody for a period of four days. 9. It is submitted by the learned Counsel appearing on behalf of the Petitioner that perusal of the statement of the Immigration Officer does not disclose commission of any 5 offence as alleged in the said statement. Apart from statement of Immigration Officer, no other statement has been recorded. In fact, surprisingly, in the charge-sheet, the statement of Petitioner himself is annexed in which he has clearly stated that there was a typographical error. It is an admitted position that the Petitioner was holding valid passport. He also had valid temporary residence permit for a period of three months along with residence permit of two years in which there was a typographical error. This error was immediately corrected when the E-mail copy was produced. One fails to understand as to how and in what manner the Investigating Agency arrived at a conclusion that the Petitioner had committed an offence of forgery and or cheating. It is evident that this is a case where there is complete non-application of mind on the part of the Investigating Officer in filing charge-sheet though in the charge-sheet itself he has annexed copy of the letter which was sent by the Ambassador of India to Senegal, certifying that there was a typographical error in the permit issued by the said country. The Petitioner, as a result of the action by the police, was detained for a period of four days and has not been in a position to go to the said country in spite of valid documents. It is possible that Immigration Officer may have suspected some foul play in the residence permit which was produced by the Petitioner at the Immigration Counter and had, therefore, contacted the Duty Officer. However, the Duty Officer should have applied his mind before taking drastic action of registering the complaint under sections 6 465, 468, 471 and 420 of the Indian Penal Code. A bare perusal of the statement of the Immigration Officer discloses that even if the statement made by the said Officer is taken at its face value, no offence is spelt out. When the petitioner had produced corrected residence permit, it was the duty of the Investigating Officer to wait and obtain relevant information either from the Consulate General of the said Country of Senegal or should have waited till reply was given by the Central Government to whom the letter was addressed by the Investigating Agency. Petitioner had valid temporary residence permit. The other residence permit which was issued for a period of two years, however, contained the typographical error. No explanation has been given by the prosecution as to why the prosecution did not wait till the necessary clarification was obtained from the Consulate of the said country. In fact, Director General of the Consulate of Senegal had sent a letter dated 14/7/2008 which was addressed to the Immigration Officer in which it was specifically mentioned that there was an error in issuing residence card of the Petitioner. It was specifically mentioned that the Petitioner had previous residence card and on expiry of the said card they had issued new residence card which was valid till 11/04/2010. However, there was some typographical error viz. Petitioner’s surname “Ranani” was wrongly typed as “Ramani” and his father’s name “Haresh” was wrongly typed as “Hanesh” and his town name “Ulhasnagar” was wrongly typed as “Ulhasna”. It was also mentioned that a new residence card has been issued in 7 the same number and dates with the correct details. In spite of this letter which was sent to the Mumbai Immigration Office, the Petitioner was detained in the police custody till 16/07/2008. Immediately on the next day, a letter issued by the Ambassador of India dated 15/7/2008 was also produced by the father of the Petitioner. In spite of the said letter of Ambassador of India, the Petitioner was detained for a further period of two days. In my view, this is a clear case of abuse of process of law which has resulted in miscarriage of justice. Petitioner is a young boy of 24 years of age and at the relevant time, he was 22 years old and was proceeding to go to Senegal for the purpose of getting employment there. For the past two years, as a result of pendency of criminal complaint, he was unable to travel out of India. For the past two years also, wiser counsel did not prevail upon the prosecution and the case was not withdrawn in spite of valid documents being produced. Though it is the duty of the Immigration Officers and the Police Officers who are stationed at the Airport to ensure that the people are not allowed to travel where they find that there is discrepancy in the Visa issued and the passport and discrepancy either in the name or other particulars in the Visa and Passport, yet, that does not justify their action in filing criminal prosecution against the citizens who are traveling abroad on valid passport. In this case, it was the duty of the Investigating Officer to have first verified the genuineness of the visa, E- mail print out which was produced and, thereafter, he could have proceeded to take action against the Petitioner if it was 8 found that the document was deliberately fabricated. The Apex Court in catena of cases has held that this Court has power to quash the FIR and charge-sheet which is filed pursuant to the FIR if it is found that the statement made in the FIR even if it is taken on its face value does not constitute any offence. In the present case, therefore, even if the statement in the FIR is taken even on its face value, no offence is spelt out and, therefore, this Court while exercising its power under section 482 of the Criminal Procedure Code and under Article 227 of the Constitution of India, can quash such FIR and the charge-sheet filed thereafter. 10. When the learned Additional Public Prosecutor was asked as to why compensation should not be awarded to the Petitioner, he submitted that the said mistake in filing charge-sheet has occurred inadvertently. He submitted that the Investigating Officer has retired in the earlier month i.e in July 2008. He submitted that a lenient view may be taken by this Court in respect of the said error which was committed by the Investigating Officer. 11. Various terrorists alerts which are received by the Officers particularly at the Airports and other important places, might have contributed to the said mistake which has taken place. However, Investigating Agency is expected to act with care and circumspection before any prosecution is launched or atlest before the charge-sheet is filed. 9 12. In view of submissions made by the learned APP appearing on behalf of the Sate, compensation is not awarded to the Petitioner for the lapse on the part of the Investigating Agency. 13. In the result, the following order is passed:- ORDER The Petition is allowed and is made absolute in terms of prayer clauses (a) and (b). The FIR which is registered against the present Petitioner vide FIR No.365/2008 for the offence punishable under sections 465, 468, 471, 420 of the IPC with Sahar Police Station on 12th July, 2008 is also quashed and set aside. (V.M. KANADE, J.) 10