High Court of KeralaSingle Judge2014-07-25Petitions allowed; common order set aside; pass...

Anwar P.K. v. State of Kerala

Case / Petition Number:Crl.M.C. Nos.3854 & 3855 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2014-07-25
Court Decision / Holding: Petitions allowed. Common order dated 21.08.2012 in CMP Nos.4296/2012 (Crime No.17/2011) and 4297/2012 (Crime No.16/2011) set aside. Passport exemption granted for a maximum period of two years from today, with the petitioner to execute bonds (amounts to be fixed by the trial court) with two sureties and an undertaking to appear for trial. All pending interlocutory applications are dismissed.
Final Disposition: Petitions allowed; common order set aside; passport exemption granted for a maximum period of two years with bonds and two sureties; undertakings to appear; all pending interlocutory applications dismissed.

Parties to the Case

Appellants / Petitioners

Anwar P.K.

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.V. Surendranath
• Sri. B.S. Syamanthak

Counsels for Respondents

• Sri N. Suresh (Public Prosecutor)

Case Synopsis & Summary

Anwar P.K., a student, faced two criminal cases in Crime Nos. 16/2011 and 17/2011 registered by the Panoor Police under IPC sections 143, 147, 148 and 153A (read with 149) and the Explosives Substances Act, 1908 (Ss. 3 and 4). He approached the Additional Chief Judicial Magistrate, Thalassery, with two applications under Section 6(2)(f) read with Section 22 of the Passports Act, seeking exemption from passport restrictions to travel abroad. The Magistrate declined the exemption (Annexure-A3). The petitioner contended that he was a student aiming for Gulf employment, with no entry in the FIRs and with family abroad; his passport was essential to obtain a visa. He relied on the central notification under Section 22 (GSR No.570(E), 1993) and on two Kerala High Court decisions (S.K. Asok Kumar; Muhammed) to justify exemption, arguing that the court should see whether he would escape from law rather than merely the technicalities. The State Prosecutor argued the petitioner is involved in serious offences and that the court should not relax restrictions. The High Court, after perusing the case diary, concluded that although there was an allegation of unlawful assembly, the petitioner’s totality of circumstances justified a limited exemption. It set aside the common order, allowing the petitioner to go abroad for a maximum of two years with bonds, two sureties, and an undertaking to appear, and dismissed pending interlocutory applications.

Provisions of Law Cited

Passports Act, 1967 - Section 6(2)(f)Passports Act, 1967 - Section 22Indian Penal Code - Sections 143, 147, 148, 153A read with 149Explosives Substances Act, 1908 - Sections 3 and 4Notification No. GSR No.570(E) dated 25.08.1993

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contended that he is a student aspiring for Gulf employment; passport is essential to obtain a visa; he is not shown to be involved in the alleged offences, and his name does not figure in the FIRs. The police case involves many persons and the allegations include participation in an unlawful assembly and rioting. The petitioner relied on the Section 22 notification under the Passports Act (GSR 570(E), 1993) and on precedent (S.K. Asok Kumar; Muhammed) to argue that he should be exempted from the passport restrictions for a limited period, given his family abroad and the necessity of travel for employment, while continuing to appear before the court. The petitioner sought exemption under Section 6(2)(f) with a Court order for travel. respondents: The State submitted that the petitioner is involved in criminal cases and that allowing passport exemption could obstruct the investigation and trial. Though the matter concerns a student seeking employment abroad, the court must consider the gravity of the offences and the possibility of non-appearance; the Magistrate’s order, denying exemption, should be respected unless a court finds otherwise.

Contentions of Respondents

The respondent urged adherence to the magistrate’s denial, emphasizing the petitioner’s involvement in offences and alleged unlawful assembly. The State highlighted the need to ensure appearance before the trial court and prevent evasion of law, arguing that the exemption should not be granted in light of pending cases and criminal process.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
S.K. Asok Kumar v. State of Kerala	2009 (2) KLT 712	Mentioned Only	The petitioner relied on this decision; the High Court cites it to illustrate the line of reasoning on exemption under Section 6(2)(f) of the Passports Act, but it is not expressly adopted or distinguished in the final order.
Muhammed v. State of Kerala and another	2012 (4) KLT 655	Mentioned Only	Cited by the petitioner as supportive authority on exemptions; the High Court references it to contextualize the issues but does not explicitly follow or overrule it in the operative part.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936 Crl.MC.No. 3854 of 2012 () --------------------------CMP 4297/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT,THALASSERY IN CRIME NO. 16/2011 OF PANOOR POLICE STATION PETITIONER(S)/PETITIONER: -------------------------- ANWAR P.K. AGED 21 YEARS S/O. HAMZA, SAFA MARVA(HOUSE), MAKERI (P.O.) PIN-670692. BY ADVS.SRI.P.V.SURENDRANATH SRI.B.S.SYAMANTHAK RESPONDENT(S)/RESPONDENT: ---------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI N.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-07-2014, ALONG WITH CRL.MC NO.3855/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO.3854/2012 APPENDIX PETITIONER(S) EXHIBITS ANX.A1 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE AS C.M.P. NO. 4297/2012 IN CRIME NO. 16/2011. ANX.A2 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE AS C.M.P. NO. 4296/2012 IN CRIME NO. 17/2011. ANX.A3 A TRUE COPY OF THE COMMON ORDERE DATED 21-8-2012 IN CMP 4297/2012 IN CRIME NO. 16/2011 AND CMP 4296/2012 IN CRIME NO. 17/2011. ANX.A4 A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 16/2011 OF PANOOR POLICE STATION. ANX.A5 A TRUE COPY OF THE INFORMATION REPORT IN CRIME NO. 17/2011 OF PANOOR POLICE STATION. ANX.A6 A TRUE COPY OF THE PASSPORT OF THE PETITIONER FATHER SRI. PUTHUKKUDIYIL HAMZA ALONG WITH RESIDENTIAL PERMIT IN DUBAI UNITED ARAB EMIRATES. ANX.A7 A TRUE COPY OF THE PETITIONER'S BROTHER'S INDIAN PASSPORT WITH RESIDENTIAL PERMIT IN DUBAI, UNITED ARAB EMIRATES. ANX.A8 A TRUE COPY OF THE WORK PERMIT ISSUED BY THE MINISTRY OF LABOUR UAE. RESPONDENTS' EXHIBITS : NILAME //TRUE COPY// ## **A.HARIPRASAD, J.** **-------------------------------------Crl.M.C. Nos.3854 & 3855 of 2012 -------------------------------------Dated this the 25[th] day of July, 2014.** ## **COMMON ORDER** Petitions filed under Section 482 of the Code of Criminal Procedure (in short, “Cr.P.C.”). 2. 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. 3. 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. 4. Heard the learned counsel for the petitioner and the learned 2 Crl.MC Nos.3854 & 3855/2012 Public Prosecutor. 5. 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. 6. 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. 7. Learned counsel for the petitioner relying on notification under Section 22 of the Act, which is extracted hereunder, contended that the 3 Crl.MC Nos.3854 & 3855/2012 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 14[th] April, 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizents 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_ 4 Crl.MC Nos.3854 & 3855/2012 _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.”_ 5 Crl.MC Nos.3854 & 3855/2012 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 v. State of Kerala and another (2012 (4) KLT 655)** . 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 6 Crl.MC Nos.3854 & 3855/2012 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. ## **A. HARIPRASAD, JUDGE.** ## **cks**