Mohammed Afzal vs State of Kerala

K. Ramakrishnan, J.—These two petitions were filed by the petitioner challenging the common order passed by the Judicial First Class Magistrate, Chavakkad in Crl. M.P. No. 2305/2014 in C.C. No. 522/2013 and Crl. M.P. No. 2306/14 in C.C. No. 70/2012 pending before that court under Section 482 of Code of Criminal Procedure.

The common case of the petitioner in both these cases is that the petitioner has been arrayed as 8th accused in C.C. No. 522/13 and 70/12 on the file of Judicial First Class Magistrate Court, Chavakkad which originated on the basis of Crime Nos. 461/2008 & 462/2008 both of Pavaratty Police Station respectively. Since the cases are pending before the magistrate court, without getting permission from the concerned court, he may not be able to apply for passport. He moved Crl. M.P. No. 2305/2014 in C.C. No. 522/2013 and Crl. M.P. No. 2306/14 in C.C. No. 70/2012 both pending before that court for issuing No Objection Certificate to the passport authorities for granting temporary passport. But, that petition was dismissed by the learned magistrate by the common order which is being challenged by the petitioner by filing these petitions.

Heard the Counsel for the petitioner and the learned Public Prosecutor and also called for a report from the concerned court regarding the present stage of both the cases and the learned magistrate had sent two separate reports in respect of the present stage of the cases which reads as follows:

"C.C. 522/2013 on the file of this court was a case instituted on a Police report in Crime No. 461/2008 of Pavaratty Police Station for the offences punishable U/s. 120(b), 153(A), 143, 147, 148, 447, 427 r/w 149 of IPC. On issuing summons A1, A2, A3, A5, A6 and A8 appeared before the court and are on bail. A4, A7, A9, A10 and A11 not appeared so far. The case is posted to 29.07.2014 for framing charge. Warrant of Arrest is pending against Accused No. 7."

"C.C. 70/2012 on the file of this court is a case instituted on a Police report filed in Crime No. 462/2008 of Pavaratty Police Station alleging offences Punishable U/s. 120(b), 153(A), 143, 147, 435, 427 r/w 149 of IPC. There are eleven accused in this case. On summons, except A4, A7 and A9 appeared before this court. Summons were issued to Cws 1 to 4 after framing charge to accused. Witnesses not appeared. Hence non bailable warrants were issued to Cws 1 to 4. The case stands posted to 01.09.2014 recording evidence of Cws 1 to 4. Warrant of arrest is pending against Accused Nos. 4, 7 and 9."

The Counsel for the petitioner submitted that since in one of the case, trial has already been started, he will be satisfied by directing the magistrate to expedite the trial within a time frame. Further, reasons stated by the court below is not correct.

The application was opposed by the Public Prosecutor on the ground that he is accused in several cases.

It is an admitted fact that the petitioner has been arrayed as 8th accused in Crime No. 461/08 and 462/2008 of Pavaratty Police Station which after investigation and filing the final report are now pending before the Judicial First Class Magistrate Court, Chavakkad as C.C. No. 522/2013 and 70/2012 respectively. It is also an admitted fact that the petitioner filed an application for No Objection Certificate from the court for granting temporary passport to go abroad. Those petitions were dismissed by court below stating that no such permission can be granted as that will defeat the object of the Passport Act. But, court below has failed to take note of the principle laid down by this court in this regard in Asok Kumar v. State of Kerala [2009(2) KLT 712] relying on the notification issued by the Central Government in this regard. If the trial of the case is likely to be prolonged, the intention behind this provision is to enable the party to pursue with his employment abroad. For that purpose, court can grant temporary permission and on that basis, the passport authorities can issue passport as well on such conditions as the court may deem fit to impose. So, the reason stated by the court below for dismissal of application appears to be not correct. But, however, considering the fact that in one of the case namely C.C. No. 70/12, trial of the case has already been started and summons has been issued to witnesses and in the other case, namely C.C. No. 522/2013 which is posted for framing charges in respect of persons who are appearing before the court, if petitioner is permitted to go abroad now, the trial of the case will be affected and disposal of the case will be further delayed. Though the reasons stated by the court below for rejecting the application is not sustainable, but for the reason that the trial has started can be taken as a ground to justify the order dismissing the application. So, under the circumstances, this court feels that the petitions can be disposed of as follows:

Judicial First Class Magistrate Court, Chavakkad is directed to dispose of C.C. No. 70/2012 and 522/2013 pending before that court as expeditiously as possible as against the persons who are appearing before that court at any rate within a period of four months from the date of receipt of this order.

With the above direction and observation, the petitions are disposed of.

Office is directed to communicate this order to the concerned court immediately.