Kerala High Court
Sherin Jamaludeen Kunju vs State Of Kerala on 22 February, 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY,THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938
Crl.MC.No. 6472 of 2013
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CC 783/2012 of J.M.F.C.-I,ATTINGAL
CRIME NO. 1213/2011 OF ATTINGAL POLICE STATION , THIRUVANANDAPURAM
PETITIONER/1ST ACCUSED:
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SHERIN JAMALUDEEN KUNJU
MANALUVETTATHU VEEDU, THEVELAKKARA, KOLLAM.
BY DR.S.GOPAKUMARAN NAIR (SR.)
SRI.A.RAJASIMHAN
RESPONDENTS/STATE AND THE IMPOUNDING OFFICER:
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1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
2. REGIONAL PASSPORT OFFICER
REGIONAL PASSPORT OFFICER, SNSM BUILDING, KARALKADA JUNCTION,
PETTAH.P.O., THIRUVANANTHAPURAM-695024.
BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
BY PUBLIC PROSECUTOR SMT.MAYA M.N.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLYHEARD ON 22-02-2017, THE
COURT ON THE SAME DAYPASSED THE FOLLOWING:
Crl.MC.No. 6472 of 2013 ()
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APPENDIX
ANNEXURES
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ANNEXURE-A1: CERTIFIED COPY OF THE FIR IN CRIME NO.1213 OF 2011 OF ATTINGAL
POLICE STATION.
ANNEXURE-A2: TRUE COPY OF THE FINAL REPORT IN C.C.NO.783/2012 OF JUDICIAL FIRST
CLASS MAGISTRATE COURT-I, ATTINGAL.
ANNEXURE-A3: TRUE COPY OF THE PASSPORT NO.E6 174977.
ANNEXURE-A4: TRUE COPY OF THE PASSPORT NO.L3880818.
ANNEXURE-A5: TRUE COPY OF THE VISA.
ANNEXURE-A6: TRUE COPY OF THE ORDER DATED4.11.2013.
ANNEXURE-A7: TRUE COPY OF THE ORDER OF JFMC-I, ATTINGAL DATED25.11.2013.
//True copy//
P.S to Judge
"CR"
A.M.BABU, J.
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Crl.M.C.6472/2013
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Dated : 22nd February, 2017
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ORDER
1.The question is this : Can the High Court under Sec.482 of the Cr.P.C quash an order issued by the Regional Passport Officer ?
2.The second respondent is the Regional Passport Officer, Thiruvananthapuram. His order impounding the petitioner's passport is annex-A6. The same is sought to be quashed. The relief is sought under Sec.482 of the Cr.P.C.
3.The facts are simple and admitted. Petitioner is the 1st accused in C.C.783/2012 which is pending before the Judicial Magistrate-I, First Class, Attingal. The petitioner and seven others were charged under Sec.498A of the IPC read with IPC 34. His former wife was the first informant. The petitioner works in UAE. He holds an Indian passport. His Crl.M.C.6472/13 2 passport was impounded by the second respondent. Pendency of the above criminal case is the reason stated in annex-A6 order to impound the passport. This order is sought to be quashed.
4.Heard the learned counsel for the petitioner and the learned Assistant Solicitor General of India. Heard the learned Public Prosecutor too.
5.Section 482 Cr.P.C reads thus :
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.
6.Section 482 saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under Cr.P.C. This part of the section has no application in the instant case. The Crl.M.C is filed not to get Crl.M.C.6472/13 3 any order under the Cr.P.C given effect to. Annex-A6 is not an order passed under any of the provisions of the Cr.P.C.
7.The High Court may under Sec.482 pass any order to prevent abuse of the process of any court. This part of the section too has no application here. Annex-A6 is an executive order. It cannot be said that such an order, if not quashed, would amount to abuse of the process of any court.
8.The words "or otherwise to secure the ends of justice"
appearing at the end of Sec.482 cannot be interpreted to mean that the High Court can thereunder interfere with any order passed by any authority. Those words should be read ejusdem generis with the words preceding those words. The learned Assistant Solicitor General has drawn my attention to the preamble of Cr.P.C. It reads "an Act to consolidate and amend the law relating to criminal procedure". Annex-
A6 order has nothing to do with the criminal procedure.Crl.M.C.6472/13 4
Inherent powers are saved, and not granted, under Sec.482 of Cr.P.C. The inherent powers do not extend to interfere with an executive order like annex-A6. Such an executive order is quite outside the purview of the Cr.P.C.
9.According to the learned counsel for the petitioner, Sec.482 Cr.P.C is attracted since annex-A6 order was passed in view of the pendency of a criminal case in which the petitioner is an accused. The argument is not acceptable. The order impugned must be one made in a criminal proceedings to attract Sec.482. The inherent powers can be exercised only in relation to judicial matters pending in any court or which may ultimately reach a criminal court. The power cannot be exercised to interfere with an order passed by an executive authority.
10.A division bench of the Madras High Court has gone deep into the question. The decision is K.Rajamanickam v. State of Tamil Nadu (2015 (3) Mad.Weekly Notes (Crl) Crl.M.C.6472/13 5
379). The precise question considered was whether a High Court under Sec.482 Cr.P.C could interfere with an order of an appropriate government passed under Sec.432 of the Cr.P.C. The Madras High Court concluded that although the power of the appropriate government to suspend or remit sentences flows from Sec.432 Cr.P.C an order passed thereunder, being in exercise of the executive power, cannot be interfered with under Sec.482 Cr.P.C. I place reliance on the said decision.
11.The petitioner is not entitled to any relief under Sec.482 of the Cr.P.C. The learned counsel for the petitioner requests to convert the present proceedings into one under Article 226 of the Constitution of India. The learned counsel cited the decision in M/s.Pepsi Foods Ltd. v. Special Judicial Magistrate (AIR 1998 SC 128). The Supreme Court said :
"Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses, unless there is special procedure prescribed which procedure is mandatory. If in a case Crl.M.C.6472/13 6 like the present one the court finds that the appellants could not invoke its jurisdiction under Art.226, the court can certainly treat the petition one under Art.227 or S.482 of the Code".
This Court therefore has the power to convert this proceedings into one under Article 226 of the Constitution. But there must be sufficient reasons to convert this proceedings into another proceedings. The learned counsel requests me to convert the Crl.M.C into a writ petition under Article 226. The submission of the learned counsel compels me to go into the merits of the case and other attending circumstances.
12.Annex-A6 is an order passed under Sec.10(3)(e) of the Passports Act, 1967. Thereunder, the passport authority may impound or cause to be impounded or revoke a passport if proceedings in respect of an offence alleged to have been committed by the holder of the passport is pending before a criminal court in India. Admittedly a criminal case against the petitioner charging him under Crl.M.C.6472/13 7 Sec.498A of the IPC is pending. The authority who passed annex-A6 order had the authority to pass it. Annex-A6 is thus not an order made without jurisdiction or without a ground. Interference with such an order can be had only in an extreme case.
13.Annex-A6 is an appealable order. Sec.11 of the Passports Act provides for appeal against an order made under Sec.10 (3). The learned counsel for the petitioner submits that the availability of an alternative remedy is no ground to deny his client the relief sought for. According to the learned Assistant Solicitor General, this Court should be slow in interfering with an order if an alternative remedy is available. The decision in Punjab State Warehousing Corporation, Faridkot v. Sh.Durga Ji Traders (AIR 2012 SC 700) has been relied on by the learned counsel for the petitioner. The learned Assistant Solicitor General relies on the decision in Padal Venkata Rama Reddy @ Ramu v. Kovvuri Satyanarayana Reddy ((2011 (12) SCC Crl.M.C.6472/13 8
437). The provision considered by the Supreme Court in both the decisions is Sec.482 Cr.P.C. In Padal Venkata Rama Reddy's case (supra) the Supreme Court has said that it is well settled that the inherent powers under Sec.482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It is also held that if an effective alternative remedy is available, the High Court will not exercise its powers under Sec.482, specially when the applicant may not have availed of that remedy. The Apex Court said in Punjab State Warehousing Corporation's case (supra) that availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Sec.482 of the Cr.P.C. That was an extreme case where the magistrate dismissed a complaint on a hyper technical ground. Therefore the Supreme Court said that as there was miscarriage of justice, availability of an alternative remedy was not an absolute bar in entertaining a petition under Sec.482 Cr.P.C. Again the question is whether Crl.M.C.6472/13 9 this is such an extreme case.
14.The petitioner was not unaware of his remedy of appeal. Annex-A6 order itself informed him about his right to appeal against it. The last paragraph of annex-A6 reads thus :
"In case you wish to represent against the above decision, you may make an appeal to the Chief Passport Officer, Ministry of External Affairs. Patiala House, Tilak Marg, New Delhi 110001 accompanied by a fee of Rs.25/- which has to be pad in cash at this office counter or at the State Bank of India, under the head of Account "065 other administrative service other receipts" and the receipted challan should be enclosed with the appeal".
Annex-A6 thus not only informs the petitioner of his right to appeal against it, but also who the appellate authority is, the manner in which the appeal should be filed and the fees thereof. Despite such information given to the petitioner, he did not choose to prefer an appeal, but chose to file the present Crl.M.C. I therefore do not consider this to be a fit case to interfere with annex-A6 order even under Article 226 of the Constitution.
Crl.M.C.6472/13 10
15.The learned counsel for the petitioner argued that no appeal would lie against annex-A6 order as it was not a reasoned order. It is impossible to agree with the learned counsel. Any order made under Sec.10(3) of the Passports Act is appealable under Sec.11. The possibility of interference in appeal is on the higher side if the order appealed against is not a speaking order. The above noted submission of the learned counsel compels me to believe that the petitioner purposefully avoided the statutory appeal.
16.The learned counsel next contended that annex-A6 order was passed without issuing a show cause notice to the petitioner and without holding an inquiry. It seems that there is merit in the said contention. But that too can be agitated in the appeal. I do not find any good reason for the petitioner to avoid the statutory appeal. Crl.M.C.6472/13 11
17.Let me now conclude. An executive order made by a statutory authority is not amenable to the jurisdiction of the High Court under Sec.482 of the Cr.P.C. This is not a fit case to convert into a writ petition under Article 226 of the Constitution of India. Therefore there is no question of directing the registry to convert it as a proceedings under Article 226 and to post it before the appropriate bench as per the roster.
18.The Crl.M.C fails, it being devoid of merit, and not even maintainable. It deserves only a dismissal. Dismissed.
Sd/-
A.M.BABU Judge Mrcs/20.2.2017 //True copy// P.S to Judge