H. NOUSHAD v. STATE OF KERALA & REGIONAL PASSPORT OFFICER

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938** **Crl.MC.No. 8207 of 2016 ()** **--------------------------AGAINST THE ORDER/JUDGMENT IN CRMP 6104/2016 of J.M.F.C., ADOOR CRIME NO. 845/2015 OF ADOOR POLICE STATION , PATHANAMTITTA** ## **PETITIONER(S)/PETITIONER/4TH ACCUSED:** **------------------------------------** **H.NOUSHAD** **AGED 54 YEARS, S/O. HAMEED RAWTHER, AKKANATTIL, NEDUMON P.O., EZHAMKULAM, ADOOR TALUK, PATHANAMTHITTA DISTRICT-689624.** **BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & PASSPORT OFFICER: ---------------------------------------------------------** ## **1. THE STATE OF KERALA** **REP. BY THE SUB INSPECTOR OF POLICE, ADOOR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM P.O.-682031.** **2. THE REGIONAL PASSPORT OFFICER** **REGIONAL PASSPORT OFFICE, THIRUVANANTHAPURAM-695010.** **R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY ADV.PREETHA, CENTRAL GOVERNMENT COUNSEL BY PUBLIC PROSECUTOR:SRI E C BINEESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 8207 of 2016 ()** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **ANNEXURE A1 A TRUE COPY OF THE FIR IN CRIME NO. 845/2016 OF ADOOR POLICE STATION.** **ANNEXURE A2 A TRUE COPY OF THE REPORT OF ANALYSIS OF WATER ISSUED BY THE QUALITY CONTROL SUBDIVISION LABORATORY.** **ANNEXURE A3 A TRUE COPY OF THE PASSPORT ORIGINALLY ISSUED TO THE PETITIONER.** **ANNEXURE A4 A TRUE COPY OF THE CRIMINAL MP NO.6104/2016 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR.** **ANNEXURE A5 A TRUE COPY OF THE ORDER DATED 10-11-2016 IN CRIMINAL M.P.NO.6104/2016 IN CRIME NO.845/2016.** **ANNEXURE A6 A TRUE COPY OF THE OFFICIAL MEMORANDUM DATED 1111-2016 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT ADOOR TO THE REGIONAL PASSPORT OFFICER THIRUVANANTHAPURAM.** **ANNEXURE A7 A TRUE COPY OF THE COVERING LETTER DATED 14-112016.** **ANNEXURE A8 A TRUE COPY OF THE ONLINE APPOINTMENT RECEIPT ISSUED BY THE SECOND RESPONDENT.** **ANNEXURE A9 A TRUE COPY OF THE PASSPORT ISSUED TO THE PETITIONER BY THE SECOND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS:NIL** **True Copy /** **P A to Judge** ## **'CR'** ## **SUNIL THOMAS, J.** ================= ## **Crl.M.C.No.8207 of 2016** ================= Dated this the 28[th] day of November, 2016 ## **ORDER** This Crl.M.C is filed by the fourth accused in Crime No.845 of 2016 of Adoor Police Station for offences punishable under sections 143, 147, 148, 149, 452, 294(b), 323, 354 and 506(i) of Indian Penal Code. 2. The accused was granted anticipatory bail subject to condition, inter alia, that he shall surrender his passport. He surrendered the passport. Later, the period of passport expired. Since he proposed to perform Umra, he sought permission of the court below to apply for passport to travel for a period of three months. Annexure-A4 is the application filed by him. The court below relying on the decision reported in **S.K.Asok Kumar v. State of Kerala (2009(2) KLT 712)** granted permission to leave the country for a period of three months for performing Umra, and granted liberty to apply for a passport. It was further directed that the period of three months shall be reckoned from the date of issuance of passport. 3. The passport officer renewed the passport for a period of six months. The petitioner has now approached this Court Crl.M.C. 8207/16 2 contending that for stamping visa on the passport, it should have a validity of minimum one year. Hence, he contended that though he was granted three months time for performing Umra, he is unable to undertake Umra unless the period of validity of passport is extended by atleast one year. 4. The prayer sought by the petitioner before the court below was to issue appropriate direction to the Regional Passport Officer to issue passport to undertake the Umra pilgrimage by exempting the petitioner from section 6(2)(f) of the Passport Act. The court below by its order accorded permission to undertake the Umra pilgrimage for a period of three months and for that purpose, petitioner was given liberty to apply for passport. Learned counsel for the petitioner, relying on **S.K.Asok Kumar's** case (supra) contended that the decision permitted a person who is involved in a criminal case to apply for exemption from the provisions of section 6(2)(f) of the Passport Act. It was contended that in **Haris v. State of Kerala (2010 KHC 828)** this Court had ordered release of passport. In **Muhammed v. State of Kerala (2012(4) KLT 655)** , the Single bench approved and relied on the legal proposition laid in **S.K.Asok Kumar's case** . It was Crl.M.C. 8207/16 3 submitted that by the Government of India order GSR No.570(E) dated 27.08.1993, permission for undertaking travel abroad was to be granted by the Court before which the criminal case was pending. The relevant clauses are subclause No.(i) and (iii) . They are quoted as below:- (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)---- (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. 5. The crucial question that arises is the period for which the passport should be extended/issued in the above circumstance. The contention of the learned counsel for the petitioner is that since the Court has not specified the period for which passport is to be issued, subclause (i) will not apply and it will be covered by subclause (iii) and passport authority should have issued passport valid for a period of 12 months. The Passport Officer issued Crl.M.C. 8207/16 4 passport not for a period of three months, but for a period of six months in excess of the direction of this Court. Per contra, the learned Standing Counsel for Central Government contended that invariably in a case where the Court had fixed the period, normally the Passport Officer has to go by that and by practice, they extent the period by six months, if the period granted is less. However, it was contended that, it could not have been for a period of one year or more. 6. A reference to subclause (i) and (iii) clearly shows that two aspects are dealt with in the clauses. One is the period of travelling abroad and the other one is the validity period of the passport. In other words, the issuance of a passport or the period of passport and the period of permission to leave the country are two distinct and different concepts, as is clear from subclause (i) and (iii). In the case at hand, petitioner sought permission only for leaving the country. However, he did not apply for extending the validity of the passport. However, on a premise that court had fixed the period of three months as the period of passport, the Passport Officer has proceeded to invoke subclause (i) and not subclause (iii). Legally, in this case, court below having granted permission for leaving the country for three months and did not Crl.M.C. 8207/16 5 make any direction about the period of validity of the passport, Passport Officer should have invoked rule (iii). Necessarily, passport should have been issued for a period of one year. It is clear that the period during which the person is permitted to leave the country by Court is totally different from period of validity of a passport. In the light of the above, it is clear that Rule (i) deals with the period for which the passport has to be issued and rule (iii) deals with permission to travel abroad and the validity of the period. If the Court directs the extension or renewal of passport for a specified period, clause (i) will apply and passport will have to be issued for that period. If the Court's permission was only to travel abroad for a period less than one year, but does not specify the period of validity of passport, period of validity of passport will be covered by Rule (iii) and the Passport Officer will be bound to issue for one year. 7. Hence, it would be ideal if specific directions are sought from the trial court regarding the period during which one seeks permission to leave the country and period during which he seeks for extension of the validity of the passport, if it is expiring or has expired. In such cases, Court will be within its domain to apply its mind and grant same or separate period for both. In the Crl.M.C. 8207/16 6 present case, since clause (iii) is applicable, the passport officer shall issue passport for a period of one year. In the result, Crl.M.C is allowed. Passport officer is directed to issue a passport valid for a period of one year, at the earliest. Sd/- **SUNIL THOMAS Judge** Sbna/ The word “rule” occurring in the 15[th] , 19[th] , 20[th] and 27[th] lines of paragraph 6 at page 5 of the final order dated 28.11.2016 in Crl.M.C.No.8207/2016 is corrected and substituted as “sub clause” as per order dated 27.01.2017 in Crl.M.C.No.8207/2016. Sd/- Registrar (Judicial)