Hamza v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936** ## **Crl.MC.No. 3503 of 2014** **------------------------------------** **CRL.M.P.NO.1672/2014 IN C.C.NO.468/2007 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, MANANTHAVADY** **------------------** **PETITIONER / ACCUSED :** **--------------------------------------** **HAMZA, AGED 58 YEARS, S/O.AMMED, VYSHYAM VEEDU, KAMBALAKKAD, KANIYAMBATTA AMSOM, WAYANAD DISTRICT** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENT / COMPLAINANT :** **------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.P.MAYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 3503 of 2014** ## **-----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **ANNEXURE A : CERTIFIED COPY OF THE PETITION DATED 27-03-2014 FILED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, MANATHAVADY FOR TEMPORARY PASSPORT. ANNEXURE B : TRUE COPY OF THE COUNTER STATEMENT FILED BY THE ASSISTANT PUBLIC PROSECUTOR IN ANNEXURE-A APPLICATION OF THE PETITIONER. ANNEXURE C : ORDER PASSED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, MANANTHAVADY IN CRL.M.P. 1672/2014.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Criminal M.C. No.3503 of 2014 --------------------------------------------------------------------Dated this the 3[rd] day of July, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, who is the accused in C.C.468/2007 pending before the Judicial First Class Magistrate Court-II, Mananthavady, challenging the order of dismissal passed by the court below in Crl.M.P.No.1672/2014 for granting temporary permission and also issue of temporary passport to go to Saudi Arabia for umra under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged in the petition that, the petitioner is one of the accused in C.C.No.468/2007 pending before the Judicial First Class Magistrate Court-II, Mananthavady. She was regularly attending the case and co-operating with progress of the case. She wants to go to Saudi Arabia in connection with umra. For that purpose, she filed an application for issuance of a temporary Crl.M.C.No. 3503/ 2014 2 passport. But the learned magistrate in Crl.M.P.No.1672/2014 by Annexure-C impugned order dismissed the application. Aggrieved by the same the present petition has been filed. 3. Considering the nature of relief claimed in the petition, this court felt that, the petition can be disposed of at the admission stage itself, after hearing the learned counsel for the petitioner, and learned Public Prosecutor. 4. The counsel for the petitioner submitted that, she wants only one month time for performing umra and come back and she will co-operate with the trial of the case and also his client is even prepared to file an affidavit before the court below that, during her absence, she has no objection in proceeding with the trial of the case and her identity will not be disputed. 5. The application was opposed by the learned Public Prosecutor on the ground that the trial of the case is already started. Crl.M.C.No. 3503/ 2014 3 6. It is an admitted fact that, the petitioner is one of the accused in C.C.468/2007 pending before the Judicial First Class Magistrate Court-II, Mananthavady. The petitioner being a muslim, wants to go for umra and for that purpose, she wants a temporary visa and due to the pendency of this case, the passport authorities will not issue temporary passport without the permission of the court. She had approached the court in which the case is pending for that purpose by filing Crl.M.P.No.1672/2014, but the learned magistrate by impugned order dismissed the application, stating that, that court has no power to grant such permission under Section 6(2)(f) of the passport Act, 1967. But, it may be mentioned here that, the learned magistrate has omitted note, the decisions of this court reported in **(2013 (1) KLT 39) Hydrali v. State of Kerala** and **(2009 (2) KLT 712) Asok Kumar v. State of Kerala** , on this aspect. In those decisions, the circular issued by the Central Government, by which courts were Crl.M.C.No. 3503/ 2014 4 granted power to grant such permission for a short period was considered and directed the lower court to consider and pass appropriate orders. Further a report has been called for today by a telephonic message and it is seen form the report that, the case is now posted to 07.07.2014 for examination of further witnesses. Already 13 witnesses were examined and the remaining 22 witnesses have to be examined but that was not the ground mentioned by the court below for rejecting the application. So considering this fact, the order passed by the court below, dismissing the application on the ground that, that court has no power is unsustainable in law and the same is liable to be set aside with liberty for the petitioner to file a fresh application before that court for this purpose, specifying the period for which permission will have to be granted and also undertaking that the trial of the case will not be hindered on account of her absence and she will not dispute her identity during the course of trial and examination of those Crl.M.C.No. 3503/ 2014 5 witnesses, who are likely to be examined in her absence. So the petition is disposed of as follows: If the petitioner files an application for granting temporary permission to go abroad and also issue for temporary passport, for the purpose of performing umra at Saudi Arabia, then the lower court is directed to consider and dispose of that application, taking into consideration of the dictum laid down in the decision reported in Hydrali’s and Asok Kumar’s cases cited (supra), on getting an undertaking in the form of an affidavit by the petitioner that, she has no objection in proceeding with the trial of the case and examination of witnesses during her absence and she will not dispute her identity while examination of the witnesses, who are going to be examined in her absence. The court is at liberty to impose necessary conditions, as it Crl.M.C.No. 3503/ 2014 6 may think fit to impose and also fix a period of permission etc., in accordance with law. With the above observation and direction, this criminal miscellaneous case is disposed of. Office is directed to communicate this order to the concerned court, immediately. Handover a copy of the order to the counsel for the petitioner, so as to produce the same before the concerned court for filing fresh application, as stated in the order. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss