Nisamudeen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938** ## **Crl.MC.No. 2908 of 2016** **-------------------------------------** ## **CRIME NO. 334/2011 OF VITHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT** **-----------------------** ## **PETITIONER(S)/ACCUSED :** **------------------------------------------** **NISAMUDEEN, AGED 39 YEARS, S/O. ABDUL RASHEED, NIZAR MANZIL, P.O.THULIKKODE, VIA THEVANPARA, THIRUVANANTHAPURAM.** **BY SRI.P.VIJAYA BHANU (SENIOR ADVOCATE) ADVS. SRI.M.REVIKRISHNAN SMT.MITHA SUDHINDRAN** **RESPONDENT(S)/COMPLAINANT :** **----------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.SAREENA GEROGE.P** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 2908 of 2016** ## **------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A TRUE COPY OF THE F.I.R. IN CRIME NO. 334/2011 OF VITHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE B TRUE COPY OF THE REPORT DATED 09-10-2013 SUBMITTED BY THE VITHURA POLICE IN CRIME NO. 334/2011. ANNEXURE C TRUE COPY OF THE ORDER DATED 03-03-2016 PASSED BY THE CHIEF PASSPORT OFFICER, DELHI.** **RESPONDENT(S)' ANNEXURES :** ## **NIL** ## **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **RAJA VIJAYARAGHAVAN V., J.** **--------------------Crl.M.C. No.2908 of 2016 -------------------------Dated this the 26[th] day of May, 2016** ## **O R D E R** - 1.The petitioner is indicted as the sole accused in Crime No. 334 of 2011 of Vithura Police Station for allegedly having committed offences punishable under Sections 12(1)(b), 2 (1a)(b) of the Passports Act, 1967. - 2.The prosecution allegation is that the petitioner had secured a passport showing his name and address as “Nisam, S/o.Rasheed, Nisam Manzil, Thonnakkal” in the year 1997. While so , on 22.02.2010, the petitioner applied for issuance of a fresh passport at the Regional Passport Office, Thiruvananthapuram under the Tatkal Scheme following which he was issued a passport bearing No. H-7507369 dated 23.2.2010 on Post Verification basis. Later, on the reception of an adverse police verification report it was revealed to the passport authorities that the Crl.M.C. No.2908/2016 2 petitioner was not residing at the address furnished in the application form. Explanation was sought for and the petitioner appeared before the authority and surrendered his passport bearing No. H-7507369 on 3.12.2010. It was then found out that on 19.05.1997, the petitioner had secured a passport A-2946892, using which petitioner had travelled abroad. - 3.The case was referred to the District Police Chief, Thiruvananthapuram Rural, on 10.02.2011, and on its basis the aforesaid crime was registered. - 4.The lynch pin of the argument of the learned counsel is based on Annexure-B UN report. It reveals that the Investigating Officer has not been able to zero in on the travel agency and the travel agent who had fabricated false document in order to enable the petitioner to secure the passport. In other words due to paucity of materials, the officer has requested that the case be categorised as UN and the same be reopened when fresh facts come to Crl.M.C. No.2908/2016 3 light. According to the learned counsel, there is no reasonable possibility for concluding the investigation in the near future in view of Annexure B. Referring to Annexure C issued by the Chief Passport Officer, it is submitted that the application submitted by the petitioner for issuance of a fresh passport was rejected in view of the pendency of the crime. It is further contended, no materials were unearthed by the police at the time of investigation and therefore continuance of Criminal Proceedings is nothing but an abuse of process of law. He is prepared to compound the offense in terms of the Act and Rules and sought for quashing Annexure A and all further proceedings that emanate therefrom. 5.The learned Counsel placed reliance on **Shymesh v. State of Kerala (2014 (3) KLT 632)** to contend that the prosecuting agency has not obtained any sanction in terms of Section 15 of the Passports Act. Reliance is also placed on the judgment of the Apex Court in **State, CBI** Crl.M.C. No.2908/2016 4 ## **v. Sashi Balasubramanian (2006) 13 SCC 252)** to contend that “institution of prosecution” would include institution or commencement of Criminal Proceeding. 6.It is further submitted by the learned counsel that the crime was registered as early as on 26.05.2011 and thereafter six years have elapsed. The maximum punishment provided for the offence, which the petitioner is alleged to have committed, is imprisonment for a term which may extend to two years or with fine of Rs. **-** 50,000/ or with both. Annexure-B report reveals that there is absolutely no possibility of the investigation reaching its logical conclusion in the near future. Learned counsel pointed out that Section 468 of the Code expressly bars the Court from taking cognizance of an offence of the category specified in Sub Section 2(a) after three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. This is yet another reason for Crl.M.C. No.2908/2016 5 bringing the prosecution to a termination , according to the learned counsel. - 7.The learned Public Prosecutor on the other hand submitted that the person who had fabricated the false document was identified to be a travel agent and despite all efforts made by the investigating officer, they were unable to locate the said person. It was in the said circumstance that Annexure-B UN report was submitted before the learned Magistrate. It is further submitted that facts and circumstances does not warrant invocation of powers to quash the criminal proceedings. - 8.I have anxiously considered the rival submissions. - 9.Annexure-A crime is registered on 26.05.2011 purportedly under sections 12(1)(b), 2(1a)(b) of the Passports Act, 1967. Anexure-B report submitted by the investigating officer on 09.10.2013 clearly reveals the inability of the officer to bring to light the offence said to have allegedly been committed by the petitioner herein. It is relevant to Crl.M.C. No.2908/2016 6 note that Annexure B report was submitted before Court 2 years after registration of the crime. 10.Annexure C reveals that the petitioner is an uneducated person coming from a humble background and he was a coolie worker. He had applied for passport through travel agents and would also reveal that the Chief Passport Officer was also convinced about the explanation offered by the petitioner. He was directed to submit fresh application for grant of passport after securing the acquittal in the crime registered against him. In view of Annexure B UN report, there is no reasonable possibility of the prosecution being instituted after culmination of investigation against the petitioner. No part of the delay in completing the investigation could be attributed to the petitioner herein. 11.In **Sirajul v. State of U.P. (2015 (9) SCC 201)** the Apex Court had occasion to consider whether delay in initiation of criminal proceedings or in filing criminal Crl.M.C. No.2908/2016 7 complaint would be sufficient reason to invoke powers under Section 482 of the Code to quash the proceedings. It was held as follows:- _It is thus clear from the above observations that mere delay in completion of proceedings may not be by itself a ground to quash proceedings where offences are serious, but the Court having regard to the conduct of the parties, nature of offence and the extent of delay in the facts and circumstances of a given case, quash the proceedings in exercise of jurisdiction under S.482 CrPC in the interest of justice and to prevent abuse of process of the Court_ . 12.It also appears to me that the delay that has occasioned in the instant case in instituting the prosecution would amount to infraction of the Fundamental Right of speedy trial under Article 21 of the Constitution of India. It is by now settled that powers under Section 482 of the Code is to be exercised _ex debito justitiae_ to do real and substantial justice for the administration of which alone Courts exist. It would be an abuse of process of court to 8 Crl.M.C. No.2908/2016 allow any action which would result in injustice and prevent the promotion of justice. After anxiously considering the reasons stated by the investigating officer for submitting Annexure B UN report before Court, it appears that possibility of institution of proceedings before the Criminal Court consequent to the registration of the crime is very remote. It will result in gross travesty of justice to force the petitioner to forgo his employment abroad for the inability of the investigation agency in concluding the investigation. For the above reasons the petitioner is entitled to succeed. - 13.In the result this petition is allowed and all further proceedings against the petitioner is Crime No. 334 of 2011 of the Vithura Police station shall stand quashed. ## **RAJA VIJAYARAGHAVAN V., (JUDGE)** vps