IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL) NO.
OF 2016
IN THE MATTER OF :Ms. Ana Paula Farinello
… Petitioner Vs.
State of Uttar Pradesh and Anr.
… Respondents
CRL M P NO………....OF 2016 (AN APPLICATION FOR EXEMPTION FROM FILING OFFICAL TRANSLATION OF ANNEXURES P-2,P-3,P-4 AND P-5)
PAPER BOOK
(FOR INDEX KINDLY SEE INSIDE)
ADVOCATE FOR THE PETITIONER : SHREE PAL SINGH WILLS MATHEWS //2501 /2016 /9810068631/bbb
1
INDEX SL. NO 1.
PARTICULARS Listing Performa
2.
Synopsis and list of dates
3.
Writ Petition under Article 32 of the constitution of India with affidavit.
4.
ANNEXURE P-1 A true copy of the passport of the petitioner.
5.
ANNEXURE P-2 A true translated copy of the FIR dated 11.09.2014 registered against the petitioner
6.
ANNEXURE P-3 A true translated copy of the Charge framed against the petitioner dated 11.08.2015
7.
ANNEXURE P-4 A true translated copy of the Judgment dated 28.08.2015 passed in CC No. 4680 of 2014 by the Ld. Chief Judicial magistrate ,Maharajganj.
8.
ANNEXURE P-5 A true translated copy of the Judgment dated 10.12.2015 passed in Criminal Appeal No. 61 of 20145 passed by Additional Sessions Judge (Fast Track Court) ,Maharajganj.
9.
ANNEXURE P-6 A true copy of the Final judgment and order dated 31.05.2016 passed by the Hon’ble High Court Judicature at Allahabad, in CRL. REV No. 84 of 2016 filed by the detenu .
10.
ANNEXURE P-7 A true copy of the letter issued by the Embassy of Brazil ,New Delhi dated 27.07.2016.
11.
CRL. M P NO…..OF 2016.An application for exemption from filing official translation of annexures P2,P-3,P-4, and P-5.
PAGES
2
SYNOPSIS AND LIST OF DATES DATES The petitioner herein is a Portuguese
Speaking Brazilian
lady , aged 42 , without any friends or relatives in India , except
the professional help
Embassy, New Delhi , is
receiving
from the Brazilian
the sister of Mr. Dante Farinello
Cardoso herein after referred as the “detenu” , a BrazilianPortuguese speaking ,who was arrested on 11.09.2014 based on the complaint by the Junior Emigration Officer , Check Post-Sonauli,
Dst-
Maharajganj
,U.P,
leading
to
the
registration of FIR No. 75/2014 registered under section 419, 420, 467, 468, 471, of The Indian penal Code, and Section 14 /14 b of the Foreigners Act
registered as the case crime no.
897/2014 in respect of case no.4680/2014 before the Ld. Chief Judicial Magistrate, Maharajgang ,Uttar Pradesh . The person
detenu
is a Portuguese speaking
having no knowledge of Hindi or English
compelled to face trial
was
in Hindi , and ultimately he was
convicted by the Ld. Chief Judicial Magistrate ,Maharjganj and sentenced to imprisonment Ld.
maximum of 5 years of rigorous
with fine of Rs.5000 which was upheld by the
Additional
Sessions
Judge
,(Fast
Track
Court,
Maharajganj, UP, and confirmed by the Hon’ble High Court of Judicature at Allahabad. It is the respectful submission of the petitioner herein that, the Judgments of the Hon’ble courts
3
below are null and void and the detention of the brother of the petitioner is prima facie illegal, as he was denied a fair trial. It is respectfully submitted that, it was the duty of the Ld. Trial court to ensure that, the brother of the petitioner was provided a translator as admittedly he is a Brazilian national and a Portuguese speaking person and more than that ,he was not having the knowledge of Hindi in which the investigation and trial was conducted. The
detention of the brother of the
petitioner, in the light of the Judgments arising out of a trial ,in a language not known the detenu , without the due process of law, is illegal, null and void , and the present petition for the release of the brother of the petitioner from illegal detention.
11.09.2014
The brother of the petitioner was arrested
28.08.2015
The
Ld.
Chief
Maharjganj, UP
Judicial
Magistrate
,
convicted the detenu and
sentenced to maximum of 5 years of rigorous imprisonment with fine of Rs.5000. 10.12.2015
Ld. Additional Sessions Judge ,(Fast Track Court, Maharajganj, UP affirmed the findings of the Ld. Trial Court.
31.05.2016
The Hon’ble High Court of Judicature at Allahabad confirmed the concurrent findings of
4
the both the courts below. 27 .07.2016
The Embassy of Brazil issued a letter to the lawyer of the petitioner stating that, there was no any enquiry about
the brother of the
petitioner from the respondents and further to this the Embassy confirmed that the passport of the brother of the petitioner is original and not fake . July 2016
The petitioner is a helpless lady
with the
active assistance of the Embassy of Brazil in New Delhi , seriously aggrieved by the denial of fair trail , violation of the basic principles of natural justice, and established by law
denial of the procedure for her only brother,
is
filing the present writ petition for the release of her brother from illegal detention. It is respectfully submitted that, the petitioner is all alone, and is
in
serious difficulties associated with language, finance , and gender
is approaching this
Hon’ble court for justice. The law is well settled that, any Judgment passed in violation of the procedure established by law , or violating the basic principles of natural justice leading to an
5
“unfair trial”
is null and void and cannot
sustain in the eyes of law. Further to this, the contents of
the letter addressed to the
Advocate of the petitioner by the Brazilian Embassy is contradictory to the findings of the Hon’ble High Court on the issue of legality and validity of the passport of the brother of the petitioner
who is under detention since
11.09.2014, in a hostile atmosphere ,with a crowd speaking different languages not known the detenu , forced to eat
food not used to ,
with extreme weather , all leading to violation of his basic human rights. It is also submitted that, the petitioner and her brother though Brazilian Citizens ,are entitled to have their basic Human Rights, in the light of the fact that , India is a signatory to various International customs and conventions and more than that, India is a country where Human Rights are valued and
the life/rights of even Flaura and
Fauna are protected from time immemorial. It is also relevant to mention here that ,in Nagaraj
and Ors V. State of Karnataka
reported in 1993 SUPP 4 SCC 595 this Hon’ble
6
court observed that “Even the law bends before justice . Neither the rules of procedure nor technicalities of law can stand on its way ”. Further to this
in Mansukhlal Vitaldas v.
State of Gujarat reported in 1997 7 SCC 622 this Hon’ble court observed that the acts of the court harms no one. In Mohd. Hussain v.NCT of
Delhi
reported in 2012 2 SCC 584 this Hon’ble Court observed that it is the duty of the Trial Court to ensure fair trial and reversed the conviction of the appellant on the basis that the trial was vitiated, after referring to various judgments. It is relevant to mention here that , had the guidelines of this Hon’ble court in D.K Basu v. State of West Bengal reported in 1997 1 SCC 416 was followed by the arresting officials, the detenu would not have suffered the serious
illegalities and Human Rights
violations from the respondents.
04.08.2016
Hence the present writ petition as left with no other alternative effective remedy .
Typ/wills/2501/2016
7
IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL) NO.
OF 2016
IN THE MATTER OF :Ana Paula Farinello Aged 42, Brazilian National, D/o. Dante Pereira Cardoso, R/o. Florianopolis, Brazil . … Petitioner Vs. 1.State of Uttar Pradesh , Represented by Chief Secretary, Through Standing Counsel, Supreme Court of India, New Delhi. 110001 . 2.Union of India, Through Secretary, Ministry of External Affairs, Nehru Bhawan, 23-D, Janpath, New Delhi.110001
. Respondents
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUION OF INDIA FOR THE RELEASE OF THE BROTHER OF THE PETITIONER MR. DANTE FARINELLO CARDOSO , A BRAZILIAN CITIZEN WHO IS UNDER ILLEGAL DETENTION OF THE RESPONDENT AS THE PETITIONERS FUNDAMENTAL RIGHTS GUARANTEED ARTICLE 21 OF THE CONSTITUION OF INDIA HUMAN RIGHTS
ARE
VIOLATED
UNDER
AND HIS BASIC
BY THE RESPONDENTS BY
DENYING A FAIR TRIAL AND ILLEGAL DETENTION.
To, The Hon’ble Chief Justice and His Companion Judges of the Hon’ble Supreme Court of India. THE HUMBLE PETITIN OF THE PETITIONER ABOVE NAMED. MOST RESPECTFULLY SHOWETH.
8
1. The petitioner herein is a Brazilian lady , aged 42, Portuguese
Speaking, without any help or support
except from the Brazilian Embassy, New Delhi , with out any friends or relatives in India, is
the sister
of
Mr. Dante Farinello Cardoso herein after referred as the “deteneu” , a Brazilian- Portuguese speaking ,who was arrested on 11.09.2014 based on a complaint by the Junior Emigration Officer , Check Post-Sonauli, DstMaharajganj ,U.P, leading to the registration of FIR No. 75/2014
under section419,420,467,468,471,of Indian
penal Code, and Section 14 /14 b of the Foreigners Act resulting in
case crime no. 897/2014
no.4680/2014
before
with case
the Chief Judicial Magistrate,
Maharajgang ,Uttar Pradesh . A true copy of the passport of the petitioner is enclosed herewith as ANNEXUREANNEXURE-P1 (Pages…… (Pages……..to…. ..to….……) ….……)
2. The deteneu is a Portuguese speaking person and was having no knowledge of Hindi or English
who was
compelled to face trial in Hindi ,and ultimately he was convicted by the Ld.
Chief Judicial Magistrate
,
Maharjganj and sentenced to maximum of 5 years of rigorous imprisonment
with fine of Rs.5000 which was
upheld by the Ld. Additional Sessions Judge ,(Fast Track Court, Maharajganj, UP, and confirmed by the Hon’ble
9
High Court of Judicature at Allahabad. The petitioner reserves the right to file all the records including FIR, judgments and 313 statement once it got translated. The petitioner or the detenu is not aware of the contents of these documents even reasonably to know the facts or to take a reasonable decision , as was never supplied one by the prosecution leading to serious prejudices to the detenu and the petitioner .
3. It is the respectful submission of the petitioner herein that, the Judgments of the courts below is null and void and the detention of the brother of the petitioner is illegal, as he was denied a fair trial. It was the duty of the Ld. Trial court to ensure that, the brother of the petitioner was provided a translator as admittedly he is a Portuguese speaking person and more than that ,he was not having the knowledge of Hindi in which the trial was conducted or knowledge of English to communicate with his lawyers.
4. The brief facts of the case leading to the filing of the present writ petition is as follows.:-
A. That on 11.09.2014 the brother of the petitioner was arrested based on a complaint by the Junior Emigration Officer , Check Post-Sonauli, Dst- Maharajganj ,U.P, in
10
the light of FIR No. 75/2014
registered under
section419,420, 467,468, 471,of Indian penal Code, and Section 14 /14 b of the Foreigners Act leading to the case crime no. 897/2014 leading to case no.4680/2014 before the Chief Judicial magistrate, Maharajgang ,Uttar Pradesh. A true translated copy of the FIR dated 11.09.2014 registered against the petitioner is enclosed herewith as ANNEXUREtrue ANNEXURE-P2.(Pages…..to……).A P2.(Pages…..to……). translated copy of the Charge framed against the petitioner dated 11.08.2015 is enclosed herewith as ANNEXUREANNEXURE-P3.(Pages…..to……). B. That on 28.08.2015 the Ld.
Chief Judicial Magistrate
,Maharjganj, UP convicted the detenu and sentenced to maximum of 5 years of rigorous imprisonment with fine of Rs.5000.The detenu could not communicate with the Honble judges or the lawyers engaged by him effectively as he is not having the knowledge of Hindi or English. A true translated copy of the Judgment dated 28.08.2015 passed in CC No. 4680 of 2014 by the Ld. Chief Judicial magistrate ,Maharajganj is enclosed herewith as ANNEXUREANNEXURE-P4.(Pages…..to……). C. The detention of the brother of the petitioner in the light of the Judgment arising out of a trial , without the due process of law, is illegal, and the present petition for the
11
release of the brother of the petitioner from illegal detention. D. That on 10.12.2015 Ld. Additional Sessions Judge ,(Fast Track Court, Maharajganj, UP affirmed the findings of the Ld. Trial Court.A true translated copy of the Judgment dated 10.12.2015 passed in Criminal Appeal No. 61 of 20145 passed by
Additional Sessions Judge
(Fast Track Court) , Maharajganj is enclosed herewith as ANNEXUREANNEXURE-P5.(Pages…..to……). E. That on
31.05.2016 The Hon’ble High Court of
Judicature at Allahabad
confirmed the concurrent
findings of the both the courts below. A true copy of the Final judgment and order dated 31.05.2016 passed by the Hon’ble High Court Judicature at Allahabad, in CRL. REV No. 84 of 2016
filed by the detenu
is enclosed
herewith as ANNEXUREANNEXURE-P6. P6.(Pages…..to……). Pages…..to……). F. That on 27.07.2016 The Embassy of Brazil
issued a
letter to the lawyer of the petitioner stating that, there was no any enquiry against the brother of the petitioner from the respondents and further to this the Embassy confirmed that
the passport of the brother of the
petitioner is original. A true copy of the letter dated 27.07.2016 issued by the Embassy of Brazil to the advocate for the petitioner
is enclosed herewith as
ANNEXUREANNEXURE-P7. P7. (Pages….to…..) (Pages….to…..). o…..).
12
5. The brother of the petitioner is still in jail and was denied bail throughout, never got an opportunity to defend the case
in terms of language, knowledge, procedure
established by law and the petitioner is filing the present writ petition on the following grounds without prejudice to one another. GROUNDS
a. Because the
petitioner is a helpless lady
and is
seriously aggrieved by the denial of fair trail , violation of the basic principles of natural justice, and
denial of the
procedure established by law for her only brother. b. Because the petitioner is all alone, and is in serious difficulties associated with Language, Finance
, and
gender is approaching this Hon’ble court for justice.
c. Because the
law is well settled that, any Judgment
passed in violation of the procedure established by law , or violating the basic principles of natural justice leading to an unfair trial is null and void and cannot sustain in the eyes of law. d. Because the contents of
the letter addressed to the
Advocate of the petitioner by the Brazilian Embassy is contradictory to the findings of the Hon’ble High Court on the issue of legality and validity of the passport of the
13
brother of the petitioner and about the investigation by the police.
e. Because the brother of the petitioner is under detention since 11.09.2014 in a hostile atmosphere ,with a crowd speaking different languages, forced to eat
food not
used to , with extreme weather all leading to violation of his basic human rights.
f. Because
though
the petitioner and her brother are
Brazilian Citizens ,are entitled to have their basic Human Rights, in the light of the fact that ,India is a signatory conventions where
to
various
International
customs
and
and more than that, India is a country
Human Rights are valued and
even
the
life/rights of Flaura and Fauna are protected from time immemorial cannot close its eyes to the hard realties the petitioner and her brother is facing..
g. Because the brother of the petitioner was having a legally valid passport and the allegations against him are false and frivolous, and the trial was conducted in a language not known to the detenu, leading to denial opportunity to fair trial.
h. Because there was patent illegality in the investigation and trial , and the detenu was denied fair trial leading 14
to denial of justice. Hence the judgment of all the courts below is null and void and cannot be called a judgement in the eyes of law. i. Because there is violation of Article 14 and 21 of the constitution of India, which are applicable to foreigners also. j. Because to ensure a fair trial is more the duty of the court than the right of the accused ,particularly in a situation in which, the accused is a foreigner with no way of communicating with the language in which the trial was conducted.
k. Because there was a major lapses from the part of the respondents in not intimating the Embassy of Brazil when a Brazilian citizen was arrested.
l. Because there was no any medium of communication for the detunu, and his basic human rights of the detenu were violated .
m. Because the prosecution was duty bound to serve all the documents /evidence to the detunu in the language known to him and to explain him his rights in every stages of prosecution .
n. Because the guidelines of this Hon’ble Court in D K Basu v. State Bengal were not followed.
15
o. Because the law is well settled that any judgments delivered with out the procedure established by law is a nullity and cannot be acted upon. Because interest of Justice and ends of Justice requires allowing the present writ petition even invoking Article 142
and the
principles of parents patrie .
q. Because in Nagaraj
and Ors V. State of Karnataka
reported in 1993 SUPP 4 SCC 595 this Hon’ble court observed that “Even the law bends before justice . Neither the rules of procedure nor technicalities of law can stand on its way ”.
r. Because in Mansukhlal Vitaldas v. State of Gujarat reported in 1997 7 SCC 622 this Hon’ble court observed that the acts of the court harms no one.
s. Because the petitioner made the Ministry of External Affairs as respondent no. 2 ,
to bring on record ,the
illegalities happened while administration of justice and to take positive actions to ensure similar lapses are not repeated..
t. Because in Mohd. Hussain v.NCT of
Delhi reported in
2012 2 SCC 584 this Hon’ble Court observed that , it is the duty of the Trial Court to ensure fair trial and reversed the conviction of the appellant on the basis that
16
the trial was vitiated, after referring to various judgments.
u. Because it is relevant to mention here that , had the guidelines of this Hon’ble court in D.K Basu v. State of West Bengal reported in 1997 1 SCC 416
was followed
by the arresting officials, the detenu would not have suffered
the serious
illegalities and Human Rights
violations from the respondents.
v. Because the petitioner herself was a witness to the some of the proceedings before the Ld. Trial Court and she herself
requested for the translated version on which
neither the officials of the court nor the Ld. Presiding officer nor
her own lawyer understood what the
petitioner /detenu want due to communication problems.
w. Because the detenu never get an opportunity to understand what is going on before the Ld. Trial court due language problems. 6.
The petitioner has not filed any other similar petition
before this Hon’ble court or in any other High courts for the same relief. 7. The petitioner is a lady aged 42 with no support ,with no proper knowledge of English or Hindi and cannot do or take any legal steps anywhere in India except in Delhi, as the
17
petitioner is getting full support of the Embassy of Brazil in New Delhi and she feels safe for all reasons . The petitioner is facing a lot of language problems and finding it difficult to take any legal action in any other place other
than Delhi.
Even otherwise this Hon’ble court is having the jurisdiction to entertain the present writ petition as it is a clear case of violation of Basic Human Rights . The present writ petition is maintainable as there is explicit violation of Human Rights and the procedure established by law. The petitioner is emotionally drained and is finding it difficult to manage the affairs due to various disabilities . 8.The petitioner is filing the present writ petition with available records in English and reserves the right to file additional records/translated records at the time of hearing. 9. The cause of action for filing the present writ petition arose on 11.09.2014 when the brother of the petitioner was arrested even in violation of the guidelines of this Hon’ble court in D K Basu v. State Of West Bengal, and the cause of action last arouse when the petitioner received the letter from the Embassy of Brazil dated 27.07.2016 sating that, the passport of the brother of the petitioner was original and there was no any investigation from the part of the police and conclusions were reached with out a fair trial. It was very unfortunate that the respondent did not inform the Embassy of Brazil when the brother of the petitioner was arrested. The illegal
18
action of the respondent is in violation of the international treaties and conventions to which India is a party and more than that the guidelines of this Hon’ble court in D K Basu v. State of West Bengal leading to contempt of court. The petitioner reserves the right to take all legal remedies once the detenu is released from illegal detention. PRAYER In the above mentioned facts and circumstances of the case , it is most respectfully prayed that :A. This Hon’ble court may be graciously be pleased to issue a writ
in the nature of Habeas Corpus or any
other appropriate writs/orders directing the respondent no. 1
to produce
Mr. Dante Farinello Cardoso S/o.
Dante Pereira Cardoso , holder of
Brazilian Passport
No.YB111530 before this Hon’ble court . B. And pass any further order or
orders including
awarding the cost of the present writ petition. FOR THIS ACT OF KINDNESS THE PETITIONER IS EVER DUTY BOUND AND SHALL EVER PRAY Drafted by Adv. Ashish Kumar Sinha Settled By- Adv. Wills Mathews K-211/1989 Filed By-Shree Pal Singh (Advocate for the petitioner). Dated.04.08.2016
19
IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL) NO.
OF 2016
IN THE MATTER OF :Ms. Ana Paula Farinello
… Petitioner Vs.
State of Uttar Pradesh and Anr.
… Respondents
APPLICATION FOR EXEMPTION FROM FILING TRANSALTION OF ANNEXURES P2,P3,P4,AND P5.
OFFICAL
To, The Hon’ble Chief Justice and His Companion Judges of the Hon’ble Supreme Court of India. THE HUMBLE PETITIN OF THE PETITIONER ABOVE NAMED. MOST RESPECTFULLY SHOWETH. 1. The petitioner herein is a Brazilian lady , aged 42, Portuguese
Speaking, without any help or support
except from the Brazilian Embassy, New Delhi , with out any friends or relatives in India, is
the sister
of
Mr. Dante Farinello Cardoso herein after referred as the “deteneu” , a Brazilian- Portuguese speaking ,who was arrested on 11.09.2014 based on a complaint by the Junior Emigration Officer , Check Post-Sonauli, DstMaharajganj ,U.P, leading to the registration of FIR No. 75/2014
under section419,420,467,468,471,of Indian
penal Code, and Section 14 /14 b of the Foreigners Act resulting in
case crime no. 897/2014
no.4680/2014
before
with case
the Chief Judicial Magistrate,
Maharajgang ,Uttar Pradesh . 20
2. That on today the petitioner filed the accompanying writ petition with annexures translated by advocate due tom urgency involved. The applicant undertakes to file officially translated copy of the annexures in due course. 3. Much prejudice will be caused to the petitioner if the present application is not allowed. PRAYER In the above mentioned facts and circumstances of the case , it is most respectfully prayed that :-
A. This Hon’ble court may be graciously be pleased to exempt the petitioner from filing official translated copy of annexures P-2, P-3, P4, and P-5. B. And pass any further order or
orders including
awarding the cost of the present writ petition. FOR THIS ACT OF KINDNESS THE PETITIONER IS EVER DUTY BOUND AND SHALL EVER PRAY
Settled By- Adv. Wills Mathews K-211/1989 Filed By-Shree Pal Singh (Advocate for the petitioner). Dated.04.08.2016
21
