IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.REV.PET.NO. 1630 OF 2009() ------------------------------ AGAINST THE ORDER DATED 17/03/2009 IN CMP 2802/08 IN CC.192/2006 OF CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S): PETITIONERS/ACCUSED ---------------------------------------------------------------- 1. THURAIYAMMA JAYAKUMAR, D/O.MAHESWARY, SIVAPERUNNAN ROAD 3RD STREET, NO.5/856,VANNAR VANNAI DESOM, THACHIMAR COIL,JAFNA,SREELANKA. 2. JAYAKUMAR JAYA GAURI, D/O.THURAIYAMMA JAYAKUMAR, SIVAPERUNNAN ROAD 3RD STREET, NO.5/856,VANNAR VANNAI DESOM, THACHIMAR COIL,JAFNA,SREELANKA. BY ADV. SMT.MAJIDA.S SRI.K.RAJESH KANNAN SRI.AJIKHAN.M RESPONDENT(S): COUNTER PETITIONER/COMPLAINANT ---------------------------------------------------------------------------- THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 3.6.2009, THE COURT ON 19/06/2009 PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1630 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of June, 2009 O R D E R -------------- 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 CRL.R.P. No.1630 of 2009 -: 2 :- (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 CRL.R.P. No.1630 of 2009 -: 3 :- 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 CRL.R.P. No.1630 of 2009 -: 4 :- 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 CRL.R.P. No.1630 of 2009 -: 5 :- 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 CRL.R.P. No.1630 of 2009 -: 6 :- 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 CRL.R.P. No.1630 of 2009 -: 7 :- 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. CRL.R.P. No.1630 of 2009 -: 8 :- 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