Hamza vs State

Thomas P. Joseph, J.—Petitioner is the 10th accused in C.C. No. 409 of 2009 of the court of learned Judicial First Class Magistrate, Kalpeatta in Wayanad for offences punishable under Sections 143, 147, 447 and 427 read with Section 149 of the Indian Penal Code. Petitioner was granted bail. Thereafter Petitioner was selected for performing Haj Pilgrimage in the Government quota. Petitioner wants to go abroad for performing Haj. According to the Petitioner, Notification No. G.S.R. 570(E) dated 25.08.1993 issued by the Central Government enables a citizen of India even if criminal cases are pending against him to go abroad for performing Haj Pilgrimage and hence Petitioner is entitled to go abroad. Petitioner filed C.M.P No. 2739 of 2011 in C.C. No. 409 of 2009 before the learned Magistrate praying for a direction to the Passport Authority to issue a Passport to him. Learned Magistrate as per order dated June 16, 2011 observed that he has no authority to issue any such direction but observed that there is no restriction imposed by that court against Petitioner for his proposed journey. Learned Counsel submitted that observation made by the learned Magistrate and referred above is not sufficient to get a Passport issued to the Petitioner since the Passport Authority is refusing to issue Passport to him on account of pendency of the criminal case and holding the view that learned Magistrate has not permitted Petitioner to go abroad.

Notification referred by the learned Counsel states that the Central Government being of the opinion that it is necessary in public interest to do so and exempt 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 Passport Act and subject to the conditions referred to therein.

It is seen from the impugned order that learned Magistrate has not permitted Petitioner to go abroad and instead has only observed that there is no restriction imposed by that court against Petitioner for his proposed journey. Having gone through the impugned order and the Notification, the said observation does not appear to be sufficient. Learned Magistrate has to consider, having regard to the facts and circumstances of the case whether Petitioner could be granted permission to depart from India, if necessary subject to conditions. That has not been done by the learned Magistrate. Hence I am inclined to set aside the impugned order and remit the matter to the learned Magistrate for fresh consideration.

Resultantly, Criminal Miscellaneous Case is allowed. Annexure-B, order on C.M.P. No. 2739 of 2011 in C.C. No. 409 of 2009 of the court learned Judicial First Class Magistrate, Kalpetta, Wayand is set aside and that petition is remitted to the learned Magistrate for fresh decision in the light of the observations made above, Notification referred above and the decision in Asok Kumar v. State of Kerala 2009 (2) KLT 712. Having regard to the urgency of the matter learned Magistrate is directed to expedite the proceeding and dispose of the same within ten days from the date of receipt of a copy of this order.