Allowed

Osmadiamen @ Peter Visa v. the State of Karnataka

Karnataka HC13 Aug 2024CRL.P/200935/2024

Case brief

AI extract

What is this about?

This court allowed a bail petition filed by a Nigerian citizen accused of cheating via crypto mining fraud. The petitioner was granted regular bail subject to a personal bond and a direction that he be detained in a detention center until trial concludes, citing guidelines for foreign nationals.

What did the court decide?

The petition was allowed; the petitioner was directed to be enlarged on bail in Crl.pNo.7240/2023 subject to executing a bond, appearance before the trial court, no tampering with witnesses, and deten

Osmadiamen @ Peter Visa Vs the State of Karnataka — Cheating and Forgery | Karnataka HC (2024)

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NC: 2024:KHC-K:5962 CRL.P No. 200935 of 2024

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 13^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

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CRIMINAL PETITION NO. 200935 OF 2024

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BETWEEN:

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OSMADIAMEN @ PETER VISA S/O IMMADUIN AGED ABOUT 38 YEARS OCC: STUDIED COMPUTER APPLICATION, R/O AT POMA IDA NIGERIA PRESENTLY, RESIDING AT C.K. PALYA, ANEKAL TALUKA BENGALURU - 560 083.

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…PETITIONER

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(BY SRI SHIVANAND V PATTANASHETTI, ADV.)

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AND:

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Digitally signed by NANDINI MS Location: High Court of Karnataka

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THE STATE OF KARNATAKA THROUGH VIJAYAPURA CEN POLICE STATION, DIST VIJAYAPURA - 586 101 R/BY ADDL SPP, HIGH COURT OF KARNATAKA, KALABURAGI BENCH - 585 107.

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…RESPONDENT

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(BY SRI F.M. INAMDAR, HCGP)

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THIS CRL.P. IS FILED U/S. 439 OF CR.P.C PRAYING TO GRANT THE REGULAR BAIL TO THE PETITIONER / ACCUSED NO.11 IN CC NO.7240/2023 (VIJAYAPURA CEN PS CRIME NO.83/2023 DISTRICT VIJAYAPURA) PENDING ON THE FILE OF III ADDL. CIVIL JUDGE AND JMFC VIJAYAPURA FOR THE OFFENCES PUNISHABLE U/SECS. 419 AND 420 OF IPC AND 66(C), 66(D) OF INFORMATION TECHNOLOGY ACT, 2008, AND 14(a)(b) OF FOREIGNERS ACT, 1946, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC-K:5962 CRL.P No. 200935 of 2024

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CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

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Accused No.11 in CC No.7240/2023 pending on the file of III Addl. Civil Judge and JMFC, Vijayapura, arising out of Crime No.83/2023 registered by the Vijayapura CEN Crime Police Station, Vijayapura for the offences punishable under Sections 66(C), 66(D) of Information Technology Act, 2008, Sections 419 and 420 of IPC and Section 14(a)(b) of Foreigners Act, 1946, is before this Court under Section 439 of Cr.P.C seeking regular bail.

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Heard the learned counsel for the parties.

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FIR in Crime No.83/2023 was registered by the Vijayapura CEN Crime Police Station, Vijayapura against the unknown persons initially for the aforesaid offences on the basis of the first information received from Vishalkumar Jain S/o Ravindra. In the first information, it was alleged that some unknown persons with an intention to cheat the first informant had induced him to invest in crypto mining with an assurance

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3 - NC: 2024:KHC-K:5962 CRL.P No. 200935 of 2024

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that he would receive 200% profit and accordingly, from his bank account he had paid a total sum of `59,12,765/- to the account of the unknown persons. During the course of investigation of the case, petitioner was arrested on 11.11.2023. Investigation in the case is completed and chargesheet has been filed as against 13 persons and petitioner herein is arrayed as accused No.11 in the charge-sheet. Bail application filed by the petitioner before the jurisdictional Sessions Court in Crl.Misc.No.212/2024 was rejected by order dated 22.02.2024. Therefore, he is before this Court.

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Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that the petitioner is a citizens of Nigeria and he had come to India for business purpose. The alleged offences against the petitioner are triable by the Court of Magistrate and maximum punishment for the alleged offence is imprisonment for a period of seven years. He submits that the petitioner is ready to cooperate with the trial Court for expeditious disposal of the case. Accordingly, he prays to allow the petition.

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NC: 2024:KHC-K:5962 CRL.P No. 200935 of 2024

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Per contra , learned High Court Government Pleader for respondent/State has opposed the petition. In the event, the petitioner is enlarged on bail, he is likely to flee from justice. Accordingly, prays to dismiss the petition.

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Allegation in the charge-sheet is that the accused persons were inducing people through social media for investment in crypto mining with an assurance that they would be getting 200% profit and in the present case, at various stages, accused persons totally collected a sum of `59,12,765/from the first informant, thereafter they had not returned the investment made by the first informant nor paid any profit as assured and thereby they allegedly had committed the alleged offences.

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Undisputedly the alleged offences are triable by the

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Court of the Magistrate and maximum punishment for the alleged offences is imprisonment for a period of seven years. Since the petitioner herein and some of the other accused are foreigners, Section 14(a) and 14(b) of the Foreigners Act, 1946 is also invoked in the charge-sheet against the said accused persons. In the present case investigation is completed and

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petitioner herein who is arrayed as accused No.11 is in custody from 11.11.2023.

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The Coordinate Bench of this Court in the case of Babul Khan and another vs State of Karnataka and another¹ has laid down certain guidelines to be followed by the State Authorities and the Courts while considering the bail application of the foreign nationals. The relevant guidelines which would be material to the case on hand as found in para No.113 reads as under :

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“(4) If for any reason the Court grants bail including anticipatory bail, in any criminal case where the offender is a foreign national, and the offences are under the Foreigners Act and/or also under any other Laws for the time being in force, and their Visa is cancelled or lapsed, or they have no Passport, or they are illegal migrants, then the Courts shall specifically order to keep them in detention centers, unless the competent authority has passed any order under section 3(2)(a) to (f) of Foreigners Act, 1946, or till further orders of the court or till they are deported to their mother country.

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1 2020 SCC Online Kar 3438

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(5) If the case registered against the foreign nationals, ended in conviction, they shall be ordered to be kept in regular prison of the State till they serve their sentence, and after serving the sentence, they shall be kept in detention centers till, they are deported to their country.

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(6) If the case ends up in discharge, release of the accused or acquittal, and their nationality is in dispute before the competent Tribunal, they shall be ordered to be kept in detention centers till they are deported to their country unless they have any right or otherwise entitled to remain in India, or the competent authority has passed any orders under section 3(2)(a) to (e) of Foreigners Act 1946, the acquittal, discharge or release of the accused is no bar for the concerned competent authorities to question the nationality of that person before the competent Tribunal.

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(7) The Public Prosecutors, the defence Counsel and the Courts shall make all their efforts to expeditiously deal with such cases by giving priority, for its early disposal, so as to enable other competent authorities to take appropriate steps under the facts and circumstances of each case for deportation of such foreign national (accused) as early as possible. The Court may also if permissible under law, and applicable to the facts and circumstances of a case may invoke sections 265A

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to 265L under chapter XXI (A) of Code of Criminal procedure, after following due procedure.”

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In the said case, the Coordinate Bench of this Court

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has observed that in the event the Court comes to the conclusion that the accused who is a foreign national, has made out a prima facie case for enlarging him on bail, the accused shall be directed to be detained in a detention center till the trial in the case is concluded.

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Considering the case that the alleged offences in the present case are triable by the Court of Magistrate and the maximum punishment for the alleged offences is imprisonment for a period of seven years, I am of the opinion that the petitioner who is in custody from 11.11.2023 has made out a prima facie case for grant of regular bail. Accordingly, the following:-

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ORDER

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The petition is allowed. The petitioner is directed to be enlarged on bail in CC No.7240/2023 pending on the file of III Addl. Civil Judge and JMFC, Vijayapura, arising out of Crime No.83/2023 registered by the Vijayapura CEN Crime Police Station, Vijayapura for the offences punishable under Sections

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NC: 2024:KHC-K:5962 CRL.P No. 200935 of 2024

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66(C), 66(D) of Information Technology Act, 2008, Sections 419 and 420 of IPC and Section 14(a)(b) of Foreigners Act, 1946, subject to the following conditions:

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a) The petitioner shall execute personal bond for a sum of `2,00,000/- with one surety for the likesum, to the satisfaction of the jurisdictional Court;

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b) The Trial Court is directed that at the time of releasing the petitioner on bail, the Competent Authorities shall be informed to detain him in any of the Detention Center in the State of Karnataka which is near to Vijayapur City till the trial in the case is concluded;

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c) It is also made clear that under Section 3 (2) of the Foreigners Act, if the Competent Authority feels that by means of imposing restrictions on the movements of the petitioner by taking bond with or without surety for the observance or as an alternative to the enforcement of any of the prescribed or specific restrictions or conditions can control his movements, such orders may be passed by the Competent Authority with intimation to the Court;

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d) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;

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e) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;

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f) The petitioner shall not involve in similar offences in future.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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Osmadiamen @ Peter Visa v. the State of Karnataka

Case brief

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Osmadiamen @ Peter Visa v. the State of Karnataka

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