Kerala High Court
Dijo John vs State Of Kerala on 28 June, 2022
1
Crl.M.C No. 3941 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TH
TUESDAY, THE 28 DAY OF JUNE 2022 / 7TH ASHADHA, 1944
CRL.MC NO. 3941 OF 2022
AGAINST THE ORDER/JUDGMENT IN CC 894/2015 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I,KANJIRAPPALLY
PETITIONER/S:
DIJO JOHN
AGED 37 YEARS
S/O A J JOHN (LATE) ALUMKAL HOUSE ANICKADU PO
ANICKADU VILLAGE KOTTAYAM, PIN - 686503
BY ADV P.DEEPAK
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSEUTOR HIGH COURT OF
KERALA ERNAKULAM, PIN - 682031
2 THE REGIONAL PASSPORT OFFICER
PASSPORT OFFICE PANAMPILLY NAGAR ERNAKULAM, PIN
- 682036
BY ADV PUBLIC PROSECUTOR
ADV C S HRITHWIK SR PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
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Crl.M.C No. 3941 of 2022
ORDER
The petitioner, the 3rd accused in C.C.No.894/2015 on the files of the Judicial First Class Magistrate Court-I, Kanjirappally, has approached this Court challenging Annexure-A5 order passed by the learned Magistrate. The order above was passed on Annexure-A3 application submitted by the petitioner seeking permission to go abroad and also to direct the 1 st respondent in the application, who is the 2nd respondent herein, to consider the said order while processing the application to be filed by the petitioner for issuance of his passport. In response to the same, Annexure-A4 was submitted by the Regional Passport Officer. After hearing all the parties, Annexure-A5 order was passed by which the petitioner was allowed to apply for renewal of his passport subject to the satisfaction of other conditions with the Passport Office. He was allowed to travel abroad for one year from the order date on executing a bond for Rs.30,000/-. The petitioner has approached this Court being aggrieved by the fixation of the time limit to go abroad as one year.
2. Heard Sri.P.Deepak, the learned counsel appearing for the petitioner, Sri.C.S.Hrithwik, the learned Public Prosecutor for 3 Crl.M.C No. 3941 of 2022 the State and Sri.Suvin.R.Menon, the learned Central Government Counsel for the 2nd respondent.
3. The contention put forward by the learned counsel for the petitioner is that, as per Section 7 of the Passports Act, a passport or travel document shall, unless revoked earlier, continue in force for such period as may be prescribed. Rule 12 of the Passports Rules, 1980 provides that an ordinary passport for persons other than children below the age of 15 shall be in force for ten years. It is the case of the petitioner since the Passports Act specifies the validity of the passport as 'ten years' under normal circumstances, there is no reason to deny the passport for the full extent thereof. Reliance was also placed on the proviso to Section 7, which provides for the circumstances under which the passport can be issued for a shorter period. It is pointed out that the issuance of a passport for a shorter period is permitted under two situations; (i) if the person by whom it is required so desires or (ii) if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period. It is pointed out that in this case, none of those eventualities are in 4 Crl.M.C No. 3941 of 2022 existence. Therefore, nothing precludes the learned Magistrate in permitting the petitioner to seek for issuance of a passport for the entire duration.
4. On the other hand, the learned Central Government Counsel would point out that the petitioner did not specify any period in his application. It was also pointed out that it is a case in which the petitioner was earlier issued with a passport, and later, during the police enquiry, the crime mentioned above was revealed. In such circumstances, the petitioner was directed to surrender the passport.
5. I have gone through the records and arguments advanced by both sides. The specific case of the petitioner indeed is that he is entitled to the passport as contemplated under Section 7 of the Passports Act read with Rule 12 of the Passports Rules, for the entire period, which is ten years.
6. On the other hand, it is pointed out by the learned Central Government Counsel that Section 6 provides a complete prohibition in issuing the passport. Section 6(2)(f) provides an absolute prohibition in respect of a person against whom proceedings of an offence are pending before a criminal court. 5 Crl.M.C No. 3941 of 2022 Section 22 of the Passports Act provides the powers of the Central Government to exempt by way of notification, any person or class of persons from the operation of all or any of the provisions of this Act and the Rules made thereunder. In exercise of the aforesaid powers, the Central Government has already issued Annexure-A6 notification in which the guidelines have been prescribed for issuance of passport of a person accused of an offence. The relevant portion of the aforesaid notification reads thus follows:
"G.S.R. 570(E)- In exercise of the powers conferred by clause (a) of Section 22 of the Passports Act 1967 (15 of 1967) and in supersession of the notification of the Government of India in the Ministry of External Affairs No.G.S.R. 298(E), dated the 14 th April, 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of Clause (f) of sub-section (2) of Section 6 of the said Act, subject to the following conditions, namely:-
(a) the passport to be issued to every such citizen shall be issued-
(i) for the period specified in order of the court referred to above, if the court specifies a period for which the passport has to be issued; or 6 Crl.M.C No. 3941 of 2022
(ii) if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period one year;
(ii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period validity of the passport, the passport shall be issued for one year; or"
7. Going through the stipulations contained in the aforesaid notification, it is discernible that the Court before whom the criminal proceedings in progress is given absolute discretion for granting permission to the accused/applicant to apply for the issuance of the passport. It is also provided that if any specific period is not stipulated by the Court concerned, the passport shall be issued for a period of one year. The petitioner's case is that while fixing the period for issuance of passport as one year in the impugned order, the learned Magistrate did not consider the necessity of fixing the period above one year.
8. However, since the application submitted by the petitioner for the issuance of a passport did not contain any prayer for the issuance of a passport for a particular period, the order passed by the learned Magistrate fixing the period as one year cannot be found fault with. It is also to be noted that the petitioner 7 Crl.M.C No. 3941 of 2022 did not produce any documents before the learned Magistrate to substantiate his claim that he requires a passport with higher period of validity.
9. The petitioner contends that, as he wants to go abroad, he requires a passport with a longer duration. On perusal of the order passed by the learned Magistrate, it is discernible that, as regards the fixation of the period as one year, no serious discussions or references were made, presumably because the same was never raised as a subject matter while the application was being considered. Therefore, taking into account the necessity of the petitioner to have a passport for a longer period, it is only proper that he be granted a further opportunity to raise the said prayer before the learned Magistrate along with the documents to substantiate the same. To facilitate the petitioner's option, it is only proper that the Annexure-A5 order is set aside.
As a result, this Crl.M.C is allowed and Annexure-A5 order is set aside. This order is passed only to enable the petitioner to submit a fresh application seeking issuance of a passport for a longer period. If any such application is submitted by the petitioner, along with documents to substantiate the prayer, the 8 Crl.M.C No. 3941 of 2022 learned Magistrate shall take up the same and pass appropriate orders after hearing all the necessary parties.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
rpk
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Crl.M.C No. 3941 of 2022
APPENDIX OF CRL.MC 3941/2022
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF RELEVANT PAGE OF
PASSPORT BEARING NO H2951830 VALID
FROM THE 24 02 2009 TO23 02 2019
Annexure A2 TRUE COPY OF RELEVANT PAGES OF
PASSPORT BEARING NO T 4676700 FROM
THE DATE OF 08 03 2019 TO 07 03
2029
Annexure A3 TRUE COPY OF APPLICATIION FILED
BEFORE THE JFCM
COURT1,KANJIRAPPALLY IN CMP 2085
OF 2022
Annexure4 TRUE COPY OF REPORT FILED
BYADDITIONAL CENTRAL GOVERNMENT
STANDING COUNSELIN CMP 2085 OF2022
BEFORE HTE JFCM 1, KANJIRAPPALLY
Annexure A5 TRUE COPYOF ORDER DATED 26 05 2022
IN CMP2085 OF 2022IN CC 894 OF
2015 OF JFCM COOURT
1,KANJIRAPPALLY
Annexure A6 TRUE COPY OFNOTIFICATION DATED 25
08 1993 BEARING NO GSR 570E
Annexure A7 TRUE COPY OF JUDGEMENTINCRIMINAL
WRIP PETITION NO 234 OF 2020