Anwar P.K. vs State of Kerala

A. Hariprasad, J.—Petitions filed under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.").

Petitioner in both these matters are common. He is involved in two crimes registered by Panoor Police. Crime Nos. 16 of 2011 and 17 of 2011 were registered by the Police alleging offences punishable under Sections 143, 147, 148 and 153A read with Section 149 of the Indian Penal Code (in short, "IPC") and Sections 3 and 4 of the Explosives Substances Act, 1908. Petitioner was a student at the time of the incident.

Petitioner approached the learned Additional Chief Judicial Magistrate, Thalassery with two applications as C.M.P. No. 4296 of 2012 in Crime No. 17 of 2011 and C.M.P. No. 4297 of 2012 in Crime No. 16 of 2011 seeking an order of exemption from operation of Section 6(2)(f) of the Passports Act, 1967 (in short, "the Act") read with Section 22 of the said Act. The permission was declined by the learned Magistrate as per Annexure-A3 common order. Petitioner challenges the legality of Annexure-A3 common order in these proceedings.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

Learned counsel for the petitioner submitted that the petitioner was a student of Information Technology at the material time. He was aspiring for an employment in gulf country as his father and brother are well-placed there. Only on obtaining a passport, he could have sought a visa for employment abroad. According to him, he is not involved in the offences alleged. Learned counsel for the petitioner submitted that his name did not figure in the first information report in both the cases. Panoor Police has registered cases against nearly 200 persons. It appears that the accused in the crimes formed an unlawful assembly by themselves and committed rioting and attempted to instigate communal disharmony between different groups on the ground of religion.

As directed by this Court, learned Prosecutor produced the case diary. Learned Prosecutor, on instruction, submitted that the petitioner is not involved in any other case or in any case of a graver nature. The allegation against the petitioner is that he is also a member of the unlawful assembly at the material time, which is a fact disputed by the petitioner. Learned magistrate disallowed the prayer for the reason that when he was questioned, he prevaricated about the need to go abroad.

Learned counsel for the petitioner relying on notification under Section 22 of the Act, which is extracted hereunder, contended that the petitioner is entitled to get a passport as he is not a person disqualified under the provisions of the Act. Notification No. GSR. No. 570(E) dated 25.08.1993 published by the Central Government reads as follows:

"In exercise of the powers conferred under clause (a) of S. 22 of the Passports Act, 1967 (15 of 1967) and in supersession of the notification of the Government of India the Ministry of External Affairs No. GSR. 298E, dated 14th 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 who produces the order from the court concerned permitting them to depart from India, from the operations of provisions of cl. (f) of the sub-s. (2) of S. 6 of the said Act subject to the following conditions namely

(a) the passport to be issued every such citizen shall be issued

(i) for the period specified in the order of the court referred to above, if the court specified a period for which the passport has to be issued; or

(ii) if no period either for the issue of the passport or for the period specified in such order, the passport shall be issued for a period of one year;

(iii) if such order gives permission to travel abroad for a period less than one year, but does not specified the period of validity of passport. The passport shall be issued for one year; or

(iv) if such order gives permission to travel abroad for a period exceeding one year, and does not specify the validity of the passport, then the passport shall be issued for the period travel abroad specified in the order.

(b) any passport issued in terms of (a)(ii) and (a)(iii) above can be further renewed for one year at a time, provided the applicant has not travelled for the period sanctioned by the court; and provided further that, in the meantime, the order of the court is not cancelled or modified.

(c) any passport issued in terms of (a)(i) above can be further renewed only on the basis of a fresh court order specifying a further period of validity of the passport or specifying a period travel abroad.

(d) the said citizen shall gave an undertaking to the passport issuing authority that he shall if required by the court concerned appear before at any time during the continuance in force of the passport so issued."

Learned counsel for the petitioner placed reliance on two decisions of this Court reported in S.K. Asok Kumar v. State of Kerala (2009(2) KLT 712) and Muhammed Vs. State of Kerala, . The matters considered by the court below for declining the prayer for exemption under Section 6(2)(f) of the Act were not relevant because what is required thereunder is to see whether the petitioner would escape from the clutches of law. Here, the facts and circumstances would show that his father and brother are working abroad. Learned counsel for the petitioner produced the copies of passports of father and brother of the petitioner. They are marked as Annexures-A6 and A7. Considering the totality of the facts and circumstances, I am of the view that the petitioner is entitled to be exempted under Section 6(2)(f) of the Act with conditions.

In the result, the petition is allowed. Common order passed on C.M.P. No. 4296 of 2012 in Crime No. 17 of 2011 and C.M.P. No. 4297 of 2012 in Crime No. 16 of 2011 by the Additional Chief Judicial Magistrate Court, Thalassery on 21.08.2012 is hereby set aside. Considering the fact that the petitioner is involved in cases, I find that the passport should be limited for a short period to ensure that he is appearing before the court below. Therefore, the petitioner is allowed to go abroad for a maximum period of two years from today. Petitioner shall execute necessary bonds for such amounts as may be specified by the court below with two sureties undertaking to appear before the court at the time of trial in the above cases. The period of two years will commence from today.

All pending interlocutory applications will stand dismissed.