Adarsh Biji vs State Of Kerala

Gopinath P., J

This Crl. M.C has been filed challenging Annexure-A2 order dated 03-09-2021 in C.M.P No.1278/2021 in C.C No.1349/2018 through which the application filed by the petitioner for No Objection Certificate to apply for passport pending C.C No.1349/2018 was rejected by the judicial Magistrate of the First Class, Vaikom. It is seen from Annexure-A2 order the petitioner had requested for renewal of passport for a period of 10 years. This, obeviously cannot be granted and the learned Magistrate was right in refusing permission to apply for passport for 1o years as requested by the petitioner.

This court through judgment dated 30-09-2021 in W.P (C) No.15182/2021 considered the circumstances in which the person accused of a criminal case can be permitted to apply for renewal of a passport. After examining the law exhaustively this court has issued certain guidelines regarding the grant of permission by criminal courts in the matter of issuance of passport. Paragraph 20 and 21 of the judgment in W.P (C) No.15182/2021 reads as follows;

"20. The parameters that shall govern the grant of permission by the criminal courts in the matter of issuance of passports to those involved in criminal proceedings pending in courts shall be as follows:

(i) The stage of the criminal proceeding and the duration of time within which the trial may take place;

(ii) The criminal antecedents and past conduct of the accused;

(iii) The nature and gravity of the crime; offences under Statutes dealing with acts of terrorism and acts of smuggling should require a different consideration.

(iv) In heinous crimes, if the court decides to grant permission,the period for which permission is granted can be limited;

(v) Chances of the accused fleeing or evading the trial in the case;

(vi) Mode in which the presence of the accused can be ensured during trial, including stipulating conditions like providing the address/ change of address in the country of residence abroad, either with the Indian Consulate at the country of residence abroad or with the Court where the trial is pending.

(vii) Since in cases where time is not fixed by the Magistrate while granting permission, the Passport authorities are issuing passports only for one year, the period for which the accused can be permitted to travel can also be fixed by the Magistrate, while granting permission.

The parameters laid down as above are not exhaustive. While granting permission, the criminal courts will do well to bear in mind that the ultimate aim of granting permission is to balance the competing claims of fundamental right to travel abroad and the need to ensure the presence of the accused during trial. Other reasonable safeguards to ensure the presence of the accused during trial can also be incorporated into the order granting permission, if the circumstances warrant it."

The learned counsel for the petitioner submits that the learned Magistrate may be directed to re-consider the application in the light of the guidelines issued by this court in W.P (C) No.15182/2021.

Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am inclined to accept the submission of the learned counsel for the petitioner. To enable the learned Magistrate to re-consider the application in the light of the guidelines issued by this court in the judgment in W.P (C) No.15182/2021, Annexure-A2 order is set aside. C.M.P No.1278/2021 shall be re-considered taking note of the directions issued in W.P (C) No.15182/2021. Fresh orders shall be passed in C.M.P No.1278/2021 in the manner indicated above within a period of one month from the date of receipt of a certified copy of this judgment.