Siddhartha Roy Chowdhury, J
1. “The time then has arrived, Glaucon, when, like huntsmen, we should surround the cover, and look sharp that justice does not slip away, and pass
out of sight and get lost; …..†“The Republicâ€
2. Md. Wajiul Haque, A.S.I. of police, on 7th February, 2015 brought one girl of 20 years under arrest from Hili ICP area. Her name, according to
A.S.I. Haque was Rohini Tabassum @ Sneha, a citizen of Bangladesh. Name of her father, as disclosed by the girl is Nur Mahammad of Kasipara,
Agarpara, Shibgunj, District Nababgunj, Bangladesh. As the girl failed to produce any valid document to justify her presence in the Indian Territory,
she was arrested and her belongings including a sum of Rs. 2400/- (INR) was seized. Such information of Md. Haque, the A.S.I of Police, gave birth
to Hili P.S. Case No. 22 of 2015 under Section 14A of the Foreigners’ Act.
3. After investigation, police submitted charge sheet and on 9th July, 2015 learned Additional District Judge, Fast Track Court, Balurghat, framed
charge under Section 14A(b) of the Foreigners Act. Accused person stood trial having claimed her innocence.
4. Learned Trial Court having considered the oral testimony of four witnesses examined by the prosecution and six witnesses examined by and on
behalf of the accused persons, held the accused guilty to the charge under Section 14A(b) of the Foreigners Act and sentenced her to suffer rigorous
imprisonment for 4 years and to pay fine of R. 25,000/-with a default clause.
5. Mr. Sabyasachi Banerjee, learned Counsel for the appellant assails the judgement impugned being written with a closed mind. The accused is a girl
of 20 years, Indian by birth, residing with her parents at Howrah. She reiterated her claim again and again when she was interrogated prior to her
arrest and subsequent thereto.
P.W. 2, Kartick Saha and P.W. 3, Arup Rajbhar stated that at the time of interrogation, the accused told the police that she is a resident of Howrah.
Even P.W. 1 stated that father of the accused came to Hili Police Station on 4th March, 2015. P.W. 4, S.I. Sudip Kumar Saha, the Investigating
Officer stated that he submitted a report, disclosing that the accused person is a resident of village Khajurtti, Police Station Bagnan, District Howrah.
But he did not submit any supplementary charge sheet in the final form.
6. Having taken note of such evidence according to Mr. Banerjee, learned Trial Judge had no reason to record an order of conviction. Father of the
accused person appeared before the learned Trial Judge and adduced evidence. But absence of her mother on the witness box led the learned Trial
Judge to disbelieve that parents of the accused person are Indian citizens. Though referring to the provisions of Citizenship (Amendment) Act learned
Trial Judge has said a person born on or after 1st July, 1987 but before commencement of Citizenship (Amendment) Act, 2003 and either of whose
parents is a citizen of India at the time of birth is a citizen of India. When father of the accused person came with the copy of general diary, registered
after his daughter went missing, learned Trial Judge had no reason to hold that absence of any whisper about her mother, disqualifies the accused
person to be considered as citizen of India. Learned Trial Court, since moved with a closed mind, she failed to consider the evidence in its proper
perspective. According to Mr. Banerjee the judgement is but a manifestation of misreading of evidence, resulting into miscarriage of justice.
7. Mr. Avisek Sinha, learned Counsel representing the State, with all fairness expresses his inability to support the judgement impugned.
8. Since the accused claimed to be a citizen of India and not a foreigner, Section 9 of the Foreigners Act, 1946 saddles her with the burden to prove
what she asserts, as if such fact is within her special knowledge. In this regard we can use the judgemet pronounced in the case of SIRAJUL
HOQUE VS. THE STATE OF ASSAM & ORS. reported in (2019) 5 SCC 534 wherein His Lordship Rohinton Fali Nariman was pleased to hold:
“2. The present appeal raises an issue as to whether the Appellant herein has been declared to be a foreigner incorrectly. [By the Foreigner's
Tribunal judgment dated 19.01.2017, after referring to some of the documents produced by the Appellant, and after finding that there was a
discrepancy in the name of the grandfather and the fact that the grandfather and the father later lived in different villages, the Tribunal declared the
Appellant to be a foreigner. The High Court dismissed the writ petition filed against the same judgment stating:
Having said that we may look into the written statement filed by the Petitioner before the Tribunal.] In a proceeding before the Foreigners' Tribunal
where the citizenship status of the proceedee is being questioned, that too, by the State, the proceedee must disclose all material facts within his
special knowledge relevant for establishing his citizenship at the first instance itself i.e., in the written statement. In other words, he must be able to
plead about his identity as a citizen of India. This would be as per the requirement of Section 9 of the Foreigners' Act, 1946, which is in pari materia to
the provision of Section 106 of the Evidence Act, 1872.â€
9. Section 9 Foreigners Act envisages:-“Section 9 in The Foreigners Act, 1946
9. Burden of proof.â€"If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given
thereunder, whether any person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is
not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872
(1 of 1872), lie upon such person.â€
10. From the attending facts of this case, it is admitted that the accused person, a young lady was found near Hili ICP. She was rounded up by police
and prosecuted under the Foreigners’ Act, 1946.
11. From the oral testimony of P.W. 2 and P.W. 3 it appears that during interrogation by police the accused person stated that her residence is at
Bagnan, Howrah, yet she was arrested and prosecuted as “Foreignerâ€.
12. In order to discharge such burden accused person adduced evidence as D.W. 1 and stated she is a resident of Khajurtti under P.S. Bagnana. She
came to visit Hili from Bagnan. Her parents are alive and they are citizens of India. Such statement on oath goes unchallenged as there is no cross-
examination on such claim of D.W. 1 on oath.
13. Munshi Md. Saiful Ambia as D.W. 2 stated that on 6th February, 2005 his daughter Farjana went missing. He informed Bagnan P.S. and G.D.
Entry No. 8 of 2015 was registered; his daughter is citizen of India by birth. D.W. 2 was not cross-examined on this statement.
14. Bipul Maji as D.W. 3 produced a Register of Bagnan Adarsha High School, containing the information under Serial No. 50 that indicates Farjana
Hasin appeared in Madhyamik examination in 2009. Her roll number was F08692G and Pass Certificate No was 241457. The entries are marked as
Exhibit-D and E.
15. Sahana Begum as P.W. 4 produced Birth Certificate of Farjana Hasin issued on 27th January, 2014 which is admitted as Exhibit-F. Farjana was
bond in 20th March, 1993.
16. Ashit Kumar Biswas as Joint B.D.O., Bagnan-I as P.W. 5 produced the computer voter list generated containing the name of Farjana Hasin at
Serial No. 696 as Exhibit- I/1. It corresponds to voter identity card Exhibit-B. Learned Trial Judge put question to P.W. 5 touching the requirement of
certificate under Section 65B of the Evidence Act.
17. Bhaskar Mondal, Inspector, Food and Supply, as P.W. 6 produced Ration Card Register and proved that Farzina Hasin and Munshi Md. Saiful
Ambia, admitted J/1 and K/1.
18. As I have pointed out claim of D.W. 1 the accused person that she is a resident of Bagnan, and her parents are Indian citizens goes
uncontroverted. There was no cross examination by prosecution. So is the testimony of D.W. 2 that his daughter is a citizen by birth. It goes without
saying that failure to cross examinee any witness, on material particulars amounts to admission and we can rely upon the judgement of Hon’ble
Supreme court in this regard, pronounced in State of U.P. vs. Man Singh reported in 2002 AIR SCW 4458.
19. Division Bench of this Hon’ble Court in A.E.G. CARAPIET VS A.Y. DERDERIAN reported in ILR (1961) (1) Cal 715 : AIR 1961 Cal 359
held:-
“Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow
that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of
essential justice. ………… It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining
that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had
any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety.â€
Therefore, absence of cross-examination of D.W. 1 and D.W. 2 about the citizenship of the accused person, as asserted by them should be
considered to have been accepted by the State.
20. D.W. 1 is getting support from rest of the defence witnesses and three out of four such witnesses are public servants. D.W. 5 is Joint B.D.O.,
Bagnan, Howrah. The oral testimony of those witnesses unerringly indicate the fact that Farjana Hasin is a citizen of India. Her parents are citizens of
India. She studied at Bagnan passed Secondary Examination from Bagnan in the year 2009.
21. D.W. 1 is also getting support from P.W. 4 Sudip Kumar Saha the I.O. who stated as follows:-
“I have done an inquiry in this case as per order of the Ld. Court and submitted a report and I perused the Bagnan P.S. G.D. entry No. 288/2015
dt. 06.02.2015 and Bagnan P.S. missing G.D. entry No. 08/2015, dt. 06.02.2015 and I stated in the said report that the accused is a resident of village
Khejuritti, P.S. Bagnan, Dist. Howrah, and her name is Farjana Hasin, daughter of Dr. S.S. Ambia.
After knowing this matter I have not submitted any supplementary Charge sheet and any report in final form before Ld. Court.â€
22. Learned Trial Court, I am sorry to say, could not appreciate the evidence adduced by defence witnesses properly.
23. Learned Trial Court spent many words on the profession of the father of the accused person which is neither a relevant fact nor is a fact in issue.
The admit card of Secondary Examination of the accused girl is a good piece of document relevant under Section 35 of the Evidence Act. When it
appears from the testimony of D.W. 3 that accused person appeared in the Secondary Examination in the year 2009, learned Trial Court should have
no hesitation to rely upon the document and to hold she was not a foreigner. There was no cogent reason to disbelieve the evidence of the accused
person, only because her birth certificate was obtained in 2014, that too before the arrest.
24. In my humble opinion, accused person has discharged her onus to prove that she is a resident of Bagnan, Howrah, within the territory of India. She
is a citizen by birth and so her parents. Therefore, she cannot be said to have committed any offence within the meaning of Section 14A (b) of the
Foreigners Act. She is acquitted and be released from bail bonds.
25. The Investigating Officer did not investigate the case properly. He had been to Bagnan for investigation, came to know about the correctness in
the claim of D.W. 2 that his daughter went missing, soon thereafter he informed police. The I.O. ascertained the fact that the accused girl is a
resident of Bagnan. Yet the I.O. sent up the girl for trial. Learned Trial Court also refused to accept the evidence of the Investigating Officer
regarding his enquiry pursuant to direction by the learned Trial Court and its findings regarding the status of the accused person, without assigning any
reason.
26. Every trial is a voyage of discovery in which truth is the quest. Hon’ble Apex Court in MARIA MARGADIA SEQUERIA FARNANDES &
ORS. VS. ERASMO JACK DE SEQUERIA reported in 2012 AIR SCW held that:-
“31. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.
The truth should be the guiding star in the entire judicial process.
32. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all
levels have to seriously engage themselves in the journey of discovering the truth.
That is their mandate, obligation and bounden duty.
33. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.â€
27. Fair investigation is a right to life so is fair trial and in this case both turned out to be a tool of oppression and unqualified suffering of a young girl.
28. The investigation was perfunctory which was complimented by a judgement out and out perverse. In my humble opinion the impugned judgement
should be set aside and appeal should be allowed which I accordingly do. The convict is found not guilty to the charge. She is acquitted and discharged
from bail bonds if any. Connected application pending, if any, also stands disposed of with the disposal of appeal.
29. Let a copy of this judgement be sent down along with lower Court record to the learned Trial Court for information and necessary action.
30. Urgent photostat certified copy of this judgement, if applied therefor, should be made available to the parties upon compliance with the requisite
formalities.
