Manoj Kumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938 Crl.Rev.Pet.No. 2199 of 2014 () -------------------------------CRA 218/2009 of ADDL.SESSIONS COURT (ADHOC-III),NORTH PARAVUR CC 696/2005 of J.M.F.C.-I, ALUVA REVISION PETITIONER(S)/APPPELLANT/ACCUSED: ---------------------------------------------------------------- MANOJ KUMAR S/O.BHARGAVAN, KIZHAKKEVEETTIL (H), NEELESWARAM, HOSDURG, KASARAGODE. BY ADVS.SMT.MEREENA JOSEPH SRI.C.D.JOHNY RESPONDENT(S)/RESPONDENT/COMPLAINANT: ------------------------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, 682031, ON BEHALF OF THE DEPUTY SUPERINTENDENT OF POLICE, C.B.C.I.D., SIG-II, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI. C. K. PRASAD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.2199 of 2014 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of December 2016 ## O R D E R The petitioner was convicted and sentenced under Sections 419, 468 and 471 I.P.C. and Section 12(1)(d) of the Passports Act, 1967 concurrently by the courts below. 2. The prosecution allegation is that on 13.2.2004 at 5.45 a.m., when the revision petitioner arrived at Kochi International Airport from Abudhabi, the revision petitioner was found in possession of passport in the name of Hameed Hajabba Beary, New House, Shirilalu P.O., Belthangady, Karnataka State with the photograph of the revision petitioner. Crl.R.P.2199/2014 : 2 : 3. Before the trial court, PW1 to PW12 were examined and Exts.P1 to P15 were marked for the prosecution. No evidence was adduced from the side of the revision petitioner. ## 4. Heard. 5. The learned counsel for the revision petitioner has argued that since the accused had been convicted and sentenced under Section 12(1)(d) of the Passports Act, the accused should not have been convicted and sentenced for the offence under Sections 419, 468 and 471 I.P.C. in view of Section 26 of the General Clauses Act. 6. The learned Public Prosecutor, on the other hand, has argued that since the ingredients to constitute the offence under the Passports Act and the ingredients to Crl.R.P.2199/2014 : 3 : constitute the offence under the Indian Penal Code are distinct and separate, the conviction and sentence passed by the courts below are fully justified. 7. In this context, it is relevant to extract Section 26 of the General Clauses Act, 1897, which is extracted hereunder:- “26. Provision as to offences punishable unde two or more enactments:- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.” It is clear from the provisions of Section 26 of the General Clauses Act that if the act committed is an offence under Crl.R.P.2199/2014 : 4 : two enactments, there is no bar in proceeding against the accused under two enactments, but the accused cannot be sentenced for the same separately, if the offences are not distinct and separate. 8. In State of Bombay v. S.L. Apte (AIR 1961 SC 578), referring to section 26 of the General Clauses Act, the Apex Court observed thus in paragraph 16:- “Though Section 26 in its opening words refers to “the act or omission constituting an offence under two or more enactments”, the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to “shall not be liable to be punished twice for the same offence.” Crl.R.P.2199/2014 : 5 : If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. It therefore follows that in the present case as the respondents are not being sought to be punished for “the same offence” twice but for two distinct offences constituted or made up of different ingredients, the bar of the provision is inapplicable.” 9. The Constitution Bench of the Apex Court in Om Parkash Gupta v. State of UP (AIR 1957 SC 458 : 1957 KHC 608) considered the question as to whether Section 5(1)(c) of the Prevention of corruption Act had impliedly repealed sections 405 and 409 of the I.P.C. dealing with misappropriation by a public servant and held that since the two offences are distinct and separate, one would not repeal the other. Crl.R.P.2199/2014 : 6 : 10. In State of Bihar v. Murad Ali Khan and others (AIR 1989 SC 1 : 1988 KHC 1071), the Apex court considered the question as to whether the offence under Section 9(1) read with Section 51 of the Wild Life (Protection) Act, 1972 and Section 429 of the Indian Penal Code would be mutually exclusive and whether the earlier Act would override the general provisions of the Indian Penal Code dealing with the same subject and held that they are distinct and separate. 11. The Apex Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat and another (AIR 2012 SC 2844 : 2012 KHC 4326) considered the provisions under Section 26 of the General Clauses Act and held that the ingredients of both the statutes must be the same and not different to Crl.R.P.2199/2014 : 7 : attract the provisions of Section 26 of the General Clauses Act. The Apex Court further held in Sangeetaben (supra) that the test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. 12. From the above discussions, it is clear that even if the ingredients for the offence under the General Law and Special Law are the same, there is no bar in prosecuting the accused, even though there is bar in sentencing the accused for both the offences. Section 12(1)(d) of the Passports Act deals with a situation where the accused knowingly uses a passport or travel document issued to another person. However, in order to attract the offences under Sections 419, 468 and 471 I.P.C., there must be Crl.R.P.2199/2014 : 8 : element of cheating as defined under section 415 I.P.C. If a person cheats by personation, he shall be liable to be punished under Section 419 I.P.C. If forgery is committed for the purpose of cheating, the offence under Section 468 I.P.C. will be attracted. If a person fraudulently or dishonestly uses as genuine any forged document, section 471 I.P.C. will be attracted. From a plain reading of the provisions, it is clear that the ingredients to constitute the offence under Section 12 (1)(d) of the Passports Act and the ingredients to constitute the offence under Sections 419, 468 and 471 I.P.C. are distinct and separate. In this case, the evidence would prove that the petitioner knowingly used the passport issued to another person. Therefore, the offence under Section 12(1)(d) of the Crl.R.P.2199/2014 : 9 : Passports Act is clearly attracted. The further evidence would prove that in the said passport, instead of the photograph of the person to whom it was issued, the photograph of the petitioner was pasted by forgery. There is also evidence to prove that the said passport was used as genuine by the petitioner for travelling from Abudhabi to Kochi. Therefore, the offences under Sections 419, 468 and 471 I.P.C. are, no doubt, attracted in this case. Therefore, it cannot be said that since the sentence was awarded under Section 12(1)(d) of the Passports Act, no separate sentence could be awarded under Sections 419, 468 and 471 of I.P.C. For the said reason, the argument advanced by the learned counsel for the revision petitioner in this regard cannot be accepted. Crl.R.P.2199/2014 : 10 : 13. The learned counsel for the revision petitioner has further argued that section 23 of the Passports Act provides an exclusion for the prosecution of offences other than the offences covered under Section 23 of the Act when an accused is prosecuted under Section 12(1)(d) of the Act and consequently, the conviction and sentence passed against the accused under the General Law namely, the Indian Penal Code cannot be sustained. 14. Per contra, the learned Public Prosecutor has argued that since there is no express or implied repealing of General Law, namely the Indian Penal Code, in the Passports Act, there is no bar in prosecuting and punishing the accused simultaneously under the Passports Act and under the Indian Penal Code. Crl.R.P.2199/2014 : 11 : 15. At this juncture, it is relevant to extract Section 23 of the Passports Act, which is extracted hereunder:- “23. Act to be in addition to certain enactments: The provisions of this Act shall be in addition to and not in derogation of the provisions of the Passport Act (Entry into India) Act, 1920 (34 of 1920), the [Emigration Act, 1983 (31 of 1983), the Registration of Foreigners Act, 1939 (16 of 1939), the Foreigners Act, 1946 (31 of 1946), the Trading with the Enemy (Continuance of Emergency Provisions) Act, 1947 (16 of 1947), the Foreigners Law (Application and Amendment) Act, 1962 (42 of 1962), the Foreign Exchange Regulation Act, 1973 and other enactments relating to foreigners and foreign exchange.” 16. On a casual reading of Section 23 of the Act, it is Crl.R.P.2199/2014 **==> picture [38 x 13] intentionally omitted <==** clear that the 'Acts' referred to in Section 23 are 'Acts' having more or less the similar provisions as that of the Passports Act. Therefore, it was only for the purpose of clarification that the offences under the 'Acts' mentioned in Section 23 could be also tried along with the provisions of the Passports Act, Section 23 of the Passports Act was inserted into the statute. There is nothing in the Passports Act, 1967 indicating that the Passports Act repeals the provisions of the Indian Penal Code. The learned counsel for the revision petitioner also could not point out any provision in the Passports Act or any other authority to the effect that the provisions of the Passports Acts would repeal the provisions of the Indian Penal Code. 17. It is also clear from the words “and other Crl.R.P.2199/2014 **==> picture [38 x 13] intentionally omitted <==** enactments relating to foreigners and foreign exchange” in Section 23 of the Passports Act that the said provision is intended to clarify that the enactments relating to foreigners and foreign exchange are in addition to and not in derogation of the provisions of the Passports Act. Therefore, it cannot be said that Section 23 of the Passports Act impliedly repealed the provisions of the Indian Penal Code particularly when the offences under the Indian Penal Code are distinct and separate. The Passports Act is a special law, which is not having any overriding effect on the Indian Penal Code. Further, both the Acts were enacted with different objects to cover the different fields and hence, there is no occasion to apply the principle of implied repeal. Therefore, the argument in this Crl.R.P.2199/2014 : 14 : regard cannot be accepted. 18. In view of the above reasons, I find no reason to uphold the contention of the revision petitioner that since the revision petitioner had been convicted and sentenced under Section 12(1)(d) of the Passports Act, the court below ought not have convicted and sentenced the revision petitioner under Sections 419, 468 and 471 of I.P.C. No other argument has been advanced by the learned counsel for the revision petitioner. 19. The courts below correctly appreciated the oral and documentary evidence adduced by the prosecution and concurrently found that the revision petitioner committed the offence under Sections 419, 468 and 471 I.P.C., and Section 12(1)(d) of the Passports Act, repelling the Crl.R.P.2199/2014 : 15 : contentions of the revision petitioner. No material has been brought to the notice of this Court to indicate that the appreciation of evidence or the concurrent finding by the courts below was improper, illegal or incorrect, warranting interference by this court. In the said circumstances, the concurrent finding by the courts below that the revision petitioner committed the above said offences, does not warrant any interference by this court. 20. It has been submitted by the learned counsel for the revision petitioner that even though the revision petitioner had the original passport with him, the said passport was taken by his employer abroad and in the said circumstances only, he had to seek the assistance of some agency abroad to obtain a passport like the present one for Crl.R.P.2199/2014 **==> picture [38 x 13] intentionally omitted <==** the purpose of reaching India and in the circumstances, the learned counsel has pleaded for leniency in the matter of sentence. There is no previous conviction against the revision petitioner. The revision petitioner was aged 35 years during the relevant period. Presently, he is aged 46 years. Considering the facts and circumstances of the case, I am of the view that the sentence awarded by the courts below can be modified and reduced to simple imprisonment for three months under Section 419 I.P.C., simple imprisonment for three months and a fine of Rs.5,000/- (Rupees five thousand only) and in default to simple imprisonment for three months under Section 468 I.P.C., simple imprisonment for three months under Section 471 I.P.C. and simple imprisonment for three Crl.R.P.2199/2014 : 17 : months and a fine of Rs.3,000/- (Rupees three thousand only) and in default to simple imprisonment for two months under Section 12(1)(d) of the Indian Passport Act, to secure the ends of justice. Accordingly, I order so. The substantive sentence of shall run imprisonment concurrently. The revision petitioner is entitled to set off under Section 428 Cr.P.C. for the period of his detention in connection with this case. In the result, this revision petition stands allowed in part as above. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/.27.10..2016_ _// True Copy //_ _PA to Judge_