Christy Adima v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** ## **WP(C).No.613 OF 2020(B)** ## **PETITIONER:** **CHRISTY ADIMA AGED 54 YEARS S/O.BERNATH, POYYAPPILLI VILAKAM, POZHIYOOR, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.K.MUHAMMED SALAHUDHEEN** ## **RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110 054.** **2 THE PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, THIRUVANANTHAPURAM, SNSM BUILDING, KARALKADA JUNCTION, PETTA P.O., THIRUVANANTHAPURAM-695 024.** ## **KUM.S.KRISHNA, CGC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.613 OF 2020(B)** **2** ## **ALEXANDER THOMAS, J ============================ W.P.(C). NO. 613 OF 2020** **============================================== Dated this the 30[th] day of January 2020** **J U D G M E N T** Heard Sri. Mohammedsalahudheen, learned counsel appearing for the petitioner and Smt. S. Krishna, learned Central Government Counsel appearing for the respondents. 2. The factual aspects projected in this writ petition (civil): The petitioner submitted the application for re-issuance of passport before the 2[nd] respondent. Since the criminal case was pending, petitioner filed petitioner before the court below for permission to go abroad. Though, the learned Magistrate dismissed the petition, petitioner approached this Court and this Court as per Ext.P2 order directed to issue a passport for brief period of 3 months. Petitioner had approached the court with a prayer for permission to go to U.S. As per visa requirement, the passport with atleast 6 months validity above the period of planned stay in U.S is mandatory. Petitioner was not aware of this requirement at the time petition was filed before the court below and at the time of disposal of Crl.M.C. as per Ext.P2 order by this Court. In the light of Ext.P2, 2[nd] respondent pleaded his inab9ility issue passport with atleast one year validity to suit petitioner's **WP(C).No.613 OF 2020(B)** **3** requirement. Petitioner is also unable to approach court below in the light of Ext.P2. Hence petitioner is not having any alternative remedy for redressal of his grievance but to invoke Article 226 of the Constitution of India. It is in the light of these averments and conditions, the petitioner has filed this writ petition with the following prayers in the above writ petition are as follows: _“i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2[nd] respondent to issue passport with longer validity.”_ 3. The petitioner has been arrayed as accused NO. 3 in the instant crime No. 831/2015 of Munambom Police Station, Ernakulam District for offences punishable under sections 420, 120B, 368, 370, 282 r/w section 34 of the IPC and section 14C of the Foreigners Act. The police after investigation has filed the Final Report/charge sheet in the said crime which later led to the pendancy of Calender Case CC No. 232/2018 on the file of the Judicial First Class Magistrate Court, Njarakkal, Ernakulam. 4. The gist of the allegations in the said criminal proceedings against the accused is that he has facilitated some Sri Lankan citizens to acquire a boat to go to Australia. But by the time they were intercepted by the Police and the attempt was spoiled. The petitioner's plea for permission to travel abroad was declined by the learned Magistrate, upon which the petitioner was constrained to approach this Court on a previous **WP(C).No.613 OF 2020(B)** **4** occasion by filing Crl.MC. 7495/2019 under section 482 of the Cr.PC before this Court. This Court, by Ext.P2 order dated 13/11/2019 had finally disposed of the Crl.MC 7495/2019 by taking the view that the matter could be considered in the light of legal decisions settled by this Court in a series of cases as in **Muhammed Vs. State of Kerala & Another [2012 (4) KHC 553]** wherein it has been held that the gravity of the offences alleged cannot be the sole basis to decline permission to go abroad for a short period. It was also held therein that the passport could be issued for a shorter period. This court thereupon noted in Ext.P2 order that petitioner admittedly is not involved in any other case and that this is the only case which he was implicated. Further that the apprehension of the Prosecution that he may go abroad, absconding is too far fetched a consequence, because he has a permanent place of abode in Kerala. Under these circumstances, this Court direct as per Ext.P2 order that the petitioner could be issued a passport for a brief period of 3 months so as to enable him to go abroad as he desired. 5. According to the petitioner, he faced more serious practical problems as the visa of the foreign country concerned could be ordinarily issued only if the currency of the passport of the applicant concerned is not less than 6 months or so as is referred to in Ext.P3. These are requirements of the United States of America. The petitioner wishes to go to USA and **WP(C).No.613 OF 2020(B)** **5** Norway as he has to settle some business deals and as some of his relatives are there. According to the petitioner, the validity of the passport which he possessed was only for a period of 2 months and in view of the visa restrictions, petitioner was not in a position to take advantage of the directions issued by this Court in Ext.P2 order. 6. The petitioner would point out that ordinarily, the passport officer could issue passport, the currency period of which could be even up to 3 years and in a case where the applicant like the petitioner, who is involved in criminal proceedings, then ordinarily they would not issue passport or consider the plea for renewal of expired passport, unless pursuant to the directions enabling the petitioner to secure the passport and permission to travel abroad are issued by the competent criminal Court or the superior Courts concerned thereby. It is in the light of these aspects that the petitioner would plead that this Court may issue directions to the Regional Passport Officer, Thiruvananthapuram to ensure that the plea of the petitioner for issuance of passport be considered and effected and the currency period of the such passport that may be issued may be for a period of 3 years. 6. Smt. S. Krishna, learned Central Government Counsel appearing for the respondent would submit that unless the above said directions from the criminal Court concerned or the superior Court **WP(C).No.613 OF 2020(B)** **6** concerned for directions, in the matter of issuance of passport or renewal of passport to applicants who are involved as accused in criminal cases or specific specific directions are issued by the criminal Court in the matter of permission to travel abroad, the respondents will not be in a position to act on the unilateral request made by the petitioner in a case like this and more so particularly as he has not taken advantage of the directions issued in Ext.P2 judgment. 7. The counsel for the petitioner would point out that the calender case in CC No.232/2018 on the file of the Judicial First Class Magistrate's Court, Njarakkal is still pending and the case is being adjourned from time to time and it is not likely that the case will be taken up for trial in the near future. Learned Central Government Counsel, Smt. S. Krishna, appearing for the respondent would submit that her parties do not have any instructions on those aspects and that the petitioner ought to have impleaded the investigating officer concerned in relation to this case, so that the State Prosecutor could have obtained instructions from the investigating Officer in the present criminal case about the present and current stage of the said Calender Case on the file of the Judicial First Class Magistrate's Court, Munambam. Per contra, Sri. Mohammed Salahudheen, learned counsel appearing for the petitioner would point out that the details shown in the website of this Court would show that the case **WP(C).No.613 OF 2020(B)** **7** is now posted to 12/03/2020 and that he could reliably learn that the case may not be taken up for trial in the near future. Since petitioner has not impleaded the investigating agency in this case, this Court cannot act upon the unilateral pleas made by the petitioner. However, since this Court has already exercised its discretion as per Ext.P2 order in favour of the petitioner and this Court after hearing the prosecution agency has found that the petitioner, admittedly is not involved in any other case and that the apprehension that he may going abroad and abscond is too far fetched, some effective directions could be issued. Accordingly the following directions and orders are passed. _1. The petitioner may submit an application for issuance or renewal of passport as the case may be to the 2[nd] respondent Passport Officer, Thiruvananthapuram and upon receipt of the said application, 2[nd] respondent may conduct appropriate enquiries and then may take necessary steps in the matter of issuance of passport to the petitioner for a currency period of upto 3 years. However the pendancy of the present calender case CC NO. 232/2018 on the file of JFMC-Njarakkal, (arising out of crime No. 831/2015 of Munambam Police Station) shall not be a ground for refusing issuance of a passport._ _2. After the passport is issued, the 2[nd] respondent need not furnish the said passport directly to the petitioner. On the other hand, immediately after the issuance of the said passport, 2[nd] respondent, along with a covering letter with_ **WP(C).No.613 OF 2020(B)** **8** _copy to the petitioner, may forward the original of the said passport to the JFMC, Njarakkal, Ernakulam district who is dealing with Calender Case CC No.232/2018. The said original passport is to be forwarded to the said Court as per the directions of this Court in this judgment. So also the 2[nd] respondent would ensure that a copy of the said covering letter send by the 2[nd] respondent to the learned Magistrate along with the attested copy of the passport should be furnished to the petitioner by registered post with acknowledgment due._ _3. Thereafter, the petitioner may move an appropriate criminal miscellaneous petition in the Calender Case CC NO. 232/2018 before the JFMC Njarakkal, seeking permission to travel abroad and for other consequential prayers, whereupon the said learned Magistrate will consider the said plea and after affording reasonable opportunity of being heard to the petitioner as well as the learned Prosecutor, will pass appropriate orders thereon, in the light of legal principles well settled by this Court in a series of cases as in_ _**Muhammed Vs. State of Kerala & Another [2012 (4) KHC 553] Mohammed Rafeek vs Union of India 2011 (3) KLT 117, Midhun Vs. State of Kerala & Another 2019 (5) KHC 177** etc. At that point of time, the petitioner may produce a certified copy of this judgment along with the afore stated reported judgments of this Court and any other applicable case laws, while he submits the Criminal Miscellaneous Petition before the learned Magistrate for due consideration. Orders in that regard_ **WP(C).No.613 OF 2020(B)** **9** _should be duly passed by the learned Magistrate within 2 to 3 weeks from the date of filing of the said Criminal Miscellaneous Petition in the above said Calender Case._ With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. ## **Sd/-** **ALEXANDER THOMAS** Nsd //true copy// PA to Judge **JUDGE** **WP(C).No.613 OF 2020(B)** **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE COMMUNICATION DATED 13.08.2019 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P2 THE TRUE COPY OF THE ORDER IN CRL.MC NO.7495/2019 DATED 13.11.2019 OF HIGH COURT OF KERALA.** **EXHIBIT P3 THE TRUE COPY OF THE US VISA REQUIREMENTS ISSUED FOR THE PURPOSE OF US VIAS BY APPROVED TRAVEL CONSULTANT VISAGUIDE WORLD.** **EXHIBIT P4 THE TRUE COPY OF THE ORDER IN CRL.MC NO.985/2018 DATED 01.03.3029 OF HIGH COURT OF KERALA.** **EXHIBIT P5 THE TRUE COPY OF THE NOTIFICATION GSR NO.570(E) DATED 25.08.1993.**