Kodali Nageswara Rao vs Koneru Venu and Another

Complaining in-action on the part of the 2nd respondent herein in not taking any action for cancellation of the Passport of the 1st respondent bearing No.A-113801, dated 15-10-1990 issued by him u/s 10(3) of the Indian Passport Act, the de facto-complainant before XXII Metropolitan Magistrate, Hyderabad filed this writ petition seeking a writ of mandamus directing the 2nd respondent to act in accordance with law at the earliest possible time.

The facts leading to the filing of this case are that one Phani Priya daughter of the petitioner herein was given in marriage to one Koneru Venu, who is presently staying in United States of America by virtue of the Passport issued by the 2nd respondent valid from 15-10-1992 to 14-10-2000. Unfortunately, the marital relationship seemed to have broken down and the petitioner herein filed a complaint before the XXII Metropolitan Magistrate to take action against the 2nd respondent herein u/s 498-A of IPC, alleging that his daughter was subjected to mental and physical agony. The Magistrate seemed to have referred the complaint to the Woman Protection Cell, Hyderabad and the police seemed to have issued FIR after registering the complaint in Crime No.200 of 98 and took up investigation. During the course of investigation the police felt the presence of the respondent No.l is essential and in those circumstances the Addl. Director General of Police in his letter No.390/C-30/WPC/98, dated 30-3-1998 informed the 2nd respondent that inspite of their best efforts they could not secure the presence of the respondent No.l and requested him to cancel the Passport issued by him in favour of Koneru Venu u/s 10(3)(e) of the Indian Passport Act. But, unfortunately, the 2nd respondent seemed to have not taken any action. Apprehending that the 1st respondent may move the Courts in the USA for getting divorce and other allied matters if the proceedings initiated in this country are delayed the petitioner filed the present writ petition.

Sri R Adinarayana Rao, Sr. Central Government Standing Counsel contested the application stoutly by contending that the circumstances under which a Passport issued can be impounded or revoked mentioned u/s 10 of the Passport Act are not in existence and stated that the present situation is not governed by any of the contingencies mentioned therein. He also contended (hat Section 10(3)(e) comes into play only after the Court takes cognizance of the offence, but not earlier to that.

Admittedly in this case as the Court did not take any action on the complaint given by the petitioner, he cannot compel the 2nd respondent to take action under the above Section. I have no hesitation to reject both the contentions of the Central Government Standing Counsel. It is useful to extract Section 10(3)(e) & (h) to know the scope of controversy involved in this writ petition.

"(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal Court in India.

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest of the holder of the passport or travel document has been issued by a Court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such Court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made."

From the above it is seen that these two provisions deals with the proceedings in a Court against a passport holder. While Section 10(3)(e) can be pressed into service when proceedings against a passport holder are pending before criminal Court, Section 10(3)(h) comes into play after issuance of warrant or summons for appearance or warrant for the arrest of the holder of the passport. In other words, while Section 10(3)(h) has to pressed into service after actual issuance of the warrants or summons as the situation warrants on the facts of the case. Section 10(3)(e) can be pressed into service even before that stage reaches, otherwise both the provisions cannot be harmoniously interpreted and one of the provisions has to be declared as redundant.

Admittedly, in this case, the petitioner filed a private complaint before XXII Metropolitan Magistrate and two courses are open to him under Cr.PC i.e. (1) u/s 200, he can take cognizance of the complaint by examining the complainant and witness on oath and he can either take the case himself or direct investigation made by the police officer for the purpose of deciding whether there are sufficient grounds for proceeding against the accused or he can straight-away refer the complaint to the police for investigation u/s 256(3) of the Cr.PC. As the accused person is away from the jurisdiction of the Indian Courts and the offence alleged against him is a matrimonial one the Magistrate might have opted for the first course and issued warrants to render justice expeditiously than adopting the second course which is a cumbersome and a time consuming procedure.

Be that as it may, in the light of the view taken by me about Section 10(3)(e), as the petitioner straightaway approached the Magistrate, who in turn chose to refer the matter to the police for investigation u/s 156(3) and the police in turn issued FIR and took up the investigation as per the directions of the Courts, it should be presumed that the proceeding in the Criminal Court commenced and when once it is held that criminal proceedings are initiated the Passport Officer is bound to act either to impound or cancel the Passport. Hence, a direction is given to the Passport Officer to pass orders on the letter addressed by the Additional Director General of Police, within one week from the date of receipt of a copy of the order.

Accordingly, with the above direction the writ petition is allowed.