Akhilesh v. State of Kerala & Others

Crl.M.C.185/2021 1 ## **C.R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** **Crl.MC.No.185 OF 2021(C)** **CRIME NO.865/2016 OF Mannar Police Station , Alappuzha** ## **PETITIONER/ACCUSED:** **AKHILESH AGED 23 YEARS S/O.VISWAMBHARAN, KURUMPUZHIKKAYIL HOUSE, PAVOOKKARA P.O., MANNAR, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.K.V.ANIL KUMAR** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE STATION HOUSE OFFICER MANNAR POLICE STATION, ALAPPUZHA DISTRICT, PIN - 689 622. 3 THE REGIONAL PASSPORT OFFICER REGIONAL PASSPORT OFFICE, PANAMPALLY NAGAR, KOCHI, PIN - 682 036.** **R3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** ## **OTHER PRESENT:** ## **SRI. C.N. PRABHAKARAN(PP)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.185/2021 2 ## **ORDER** **Dated this the 1st day of March 2021** The petitioner is the accused in Crime No. 865 of 2016 of Mannar Police Station, Alappuzha District registered for the offences punishable under Section 377 of Indian Penal Code and Section 7 of the Protection of Children from Sexual Offences Act. 2. This application is filed seeking the following reliefs: i) direct the 3[rd] respondent to consider petitioner's application wide Ref. No.21-1000132233 and issue passport to the petitioner immediately for a period of two years. ii) issue such other order or direction, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 3. Bail has been granted to the petitioner as per an order dated 30.08.2016 by this Court. It is the case of the petitioner that he has no criminal antecedents and he has not committed any Crl.M.C.185/2021 3 offence as alleged. Now he has joined a professional course at Marina Academy of Maritime Training Centre, Ahmedabad and to pursue the studies he has to submit a copy of his passport to the Training Centre. As part of his academic course, it is necessary to travel in ships in and outside the country and therefore, he has submitted an application before the Passport Seva Kendra at Chengannur under the 3[rd] respondent for passport to facilitate his studies. Pursuant to the same, he was directed to appear before the Passport Seva Kendra on 25.01.2021 at 9.30 a.m. As the passport authority will issue passport only with the permission of the court because of the case pending against him he has come up with this application. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. Section 5 of the passports Act 1967 deal with the applications and power of the authority to issue passports. The relevant part Crl.M.C.185/2021 4 of the section applicable to the present case reads as follows: " **5. Applications for passports, travel documents, etc., and orders thereon** . (1) xxxx xxxx (2) On receipt of an application under this section, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,- (a) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or (b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or (c) refuse to issue the passport or travel document, or, as the case may be, refuse to make on the passport or travel document any endorsement." 6. Section 6 of the Act deals with refusal of passports, travel documents etc. Sub Section (2)(f) says that the authority can refuse to issue passport to a person if a criminal case is pending Crl.M.C.185/2021 5 before a criminal court in India. Sub section (2)(f) of Section 6 of the Passport Act,967 is extracted hereunder: ## " **6. Refusal of passports, travel documents, etc.** (1) xxxx xxxx (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) or sub-section (2) of section 5 on any one or more of the following grounds, and on no other namely:(a) to (e) xxxx xxxx (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India.” ## 7. At this juncture it is necessary to set out the notification issued by the Government of India dated 25.8.1993 regarding the guidelines to the authority to issue passport to citizens of India against whom proceedings are pending in criminal cases. It reads as follows: **==> picture [408 x 56] intentionally omitted <==** Crl.M.C.185/2021 6 of the notification of the Government of India in the Ministry of External Affairs No.G.S.R 298(E), dated the 14[th] 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 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 said Act, subject to the following conditions, namely:- (a) the passport to be issued to every such citizen shall be issued- (i) for the period specified in order of the court referred to above, if the court specifies 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 travel abroad is specified in the such order, the passport shall be issued for a period one year, (iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period validity of the 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 of travel abroad specified in the order. Crl.M.C.185/2021 7 (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 abroad 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 for travel abroad; (d) the said citizens shall give an undertaking in writing to the passport issuing authority that he shall, if required by the court concerned, appear before it any time during the continuance in force of the passport so issued." 8. Learned counsel for the petitioner has relied on the the decisions reported in **Ashok Kumar** **v. State of Kerala** [2009 (2) KLT 712] **Noushad v.** **State of Kerala** [2017 (1) KLT 972] to substantiate his argument that he is entitled to get a passport though he is involved in a criminal case. 9. It is not in dispute that the crime in which the petitioner is involved is only under investigation. The expression in Section 6 (2) (f) Crl.M.C.185/2021 8 of the Act that the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India as well the words employed in the notification that, who produce orders from the court concerned permitting them to depart from India, would clearly indicate that the Court concerned has to decide whether the petitioner/applicant is entitled to get a passport as well the period for which he is entitled to hold the passport etc. Those important aspects have to be decided by the court concerned where the case is pending. The words 'Court Concerned' means the court where the case is presently pending and not by any other court. So, the petitioner has to approach the Special court concerned where his case is pending and the court has to decide the same on the basis of the Passport Act, the notification issued by the Government of India regarding the same as well the decisions relied on by the Crl.M.C.185/2021 9 petitioner. Whether the petitioner is to be exempted from the operation of Section 2 (f) of the Passport Act has to be decided by the Court concerned dealing with the case directly, taking into consideration of the important factors such as; the present stage of investigation or trial of the case as the case may be, Whether the presence of the accused is required for identification purpose, the time required for the culmination of the case in normal course, the purpose or necessity for the visit of the applicant in the foreign country, the consequence or difficulties that may cause to applicant on its refusal, the delay that may normally happen in disposal of a criminal case etc. In this context a duty is also cast upon the court to take into account of the fact that the pendency of a criminal case shall not stand in the way or cause hindrance to decide the future of an applicant. When there is a special provision for a specific purpose there cannot be Crl.M.C.185/2021 10 any manner of doubt whatsoever and it has to be given full effect. But of-course refusal of permission by the court concerned could very well be challenged before this Court. Consequently, this Crl.M.C. is disposed of directing the petitioner to approach the court concerned with a proper application for appropriate orders. If such an application is moved by the petitioner, the court below shall dispose of the same considering the entire aspects involved within a period of three weeks from the date of submission of the said application. ## **Sd/-** ## **SHIRCY V.** **JUDGE** **sb** Crl.M.C.185/2021 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE ORDER DATED 30/08/2016 IN B.A.NO.6205/2016.** **ANNEXURE A2 A TRUE COPY OF THE SELECTION LETTER DATED 07/01/2021 ISSUED FROM THE MARINA ACADEMY OF MARITIME TRAINING CENTRE, AHMEDABAD.** **ANNEXURE A3 A TRUE COPY OF THE ONLINE RECEIPT DATED 06/01/2021 ISSUED FROM THE PASSPORT SEVA KENDRA, CHENGANNUR.** **ANNEXURE A4 A TRUE COPY OF THE ORDER DATED 15/09/2020 IN CRL.M.C.NO.4041/2020.**