Sajena Salam v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943** ## **WP(C) NO. 19465 OF 2021** ## **PETITIONER:** **SAJENA SALAM AGED 32 YEARS, D/O. ABDUL SALAM, PUTHANKANDATHIL HOUSE, CHINGOLI P.O, VANDIKAPPALLY, ALAPPUZHA DISTRICT, PIN CODE - 690532.** **BY ADVS. SRI.ARUN CHANDRAN SRI.HARIMOHAN** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**MINISTRY OF EXTERNAL AFFAIRS,**| ||**NEW DELHI, PIN CODE - 110001.**| |**2**|**THE PASSPORT OFFICER**| ||**REGIONAL PASSPORT OFFICE,**| ||**PANAMPILLY NAGAR POST OFFICE, COCHIN,**| ||**ERNAKULAM DISTRICT, PIN CODE - 682036.**| |**3**|**THE STATION HOUSE OFFICER**| ||**KAREELAKULANGARA POLICE STATION,**| ||**NANGIARKULANGARA,**| ||**ALAPPUZHA DISTRICT, PIN CODE - 690513.**| ||**BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA**| ||**ADV.JAISHANKAR V.NAIR, CGC**| W.P.(C) No.19465/21 ## **-:2:-** **BY ADV.SABEENA P. ISMAIL, GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** : **-:3:-** W.P.(C) No.19465/21 ## **BECHU KURIAN THOMAS, J. ----------------------------------------W.P.(C) No.19465 of 2021 ----------------------------------------** Dated this the 23[rd] day of September, 2021 ## **JUDGMENT** Petitioner challenges Ext.P3 and Ext.P9 show-cause notices issued by the passport officer. A direction is also sought to issue passport to the petitioner on the basis of the application submitted by her without reference to the police verification report. 2. Petitioner is the holder of a passport bearing No.N3311354 which was issued on 07.10.2015 and is valid till 06.10.2025. Petitioner claims to be a Dental Surgeon in Dubai and was living there with her husband. According to the petitioner, during her stay abroad, the relationship with her husband turned sour and she returned to India along with her minor son in January, 2021. While so, since her passport got tampered due to exposure to rain, she applied for a reissue of her passport and changes in her personal particulars in the passport by filing Ext.P2 application. 3. During the processing of the application for reissue of passport, the 2nd respondent, received an adverse police verification **-:4:-** W.P.(C) No.19465/21 report stating that a crime as 233 of 2021 was pending against her before the Kareelakulangara Police Station. Hence petitioner was called upon as per Ext.P3 to provide an explanation for suppressing the said material information. Petitioner replied through Ext.P4 stating that at the time of applying for re-issuance of passport, petitioner had no knowledge about the alleged crime which is now understood to be filed by her in-laws as a counterblast to the complaint filed by the petitioner under section 498A of the IPC. On the said basis, petitioner requested for release/issue of her passport. Even thereafter, the 2nd respondent has issued Ext.P9 calling for explanations from the petitioner stating that even on re-verification, the crime is found to be pending investigation and that petitioner has to give a proper explanation for suppressing the information. Petitioner states that Ext.P9 is a verbatim reproduction of Ext.P3 and is issued without considering the explanation offered by the petitioner and also that in the meantime petitioner has received a job offer from abroad, the call letter of which is produced as Ext.P10. It is in such circumstances that petitioner was compelled to move this Court. 4. When the matter came up for admission on 17.09.2021, this Court directed the learned Assistant Solicitor General of India to get **-:5:-** W.P.(C) No.19465/21 emergent instructions since the learned counsel for the petitioner had submitted that the matter is extremely urgent. Thereafter when the case came up on 20.09.2021, learned Assistant Solicitor General of India sought a day's time and thus it came up on 22.09.2021. 5. I have heard Adv.Arun Chandran, learned counsel for the petitioner, Adv.P.Vijayakumar, learned Assistant Solicitor General of India for the 1st respondent, Adv.Jaishankar V.Nair, learned Central Government Counsel for the 2nd respondent as well as Adv.Sabeena P. Ismail, learned Government Pleader for the 3rd respondent. 6. Learned counsel for the petitioner submitted that petitioner has not suppressed any material information which was within her knowledge at the time of applying for reissue of passport. It was also submitted that even otherwise there are no criminal proceedings pending against the petitioner to enable her to obtain permission from the Magistrate's Court as contemplated in the decision in **Muhammed v. Union of India and Others** (2018 (4) KHC 945). It is further submitted that in any case, the attempt of petitioner’s in-laws by filing the complaint is only to harass her and that if the passport is not issued to the petitioner, she will be falling prey to the evil desires of her in-laws. **-:6:-** W.P.(C) No.19465/21 7. The learned Assistant Solicitor General of India on the other hand submitted that Ext.P3 and Ext.P9 were issued seeking clarifications since the police verification report mentions the existence of Crime No.233 of 2021 before the Kareelakulangara Police Station and that it was essential for the passport issuing authority to verify as to whether the application was filed suppressing the pendency of the criminal proceedings. 8. On an appreciation of the facts and circumstances arising in the case, it is noted that an FIR was filed by the petitioner which is produced as Ext.P6 under section 498(A), 323, read with section 34 of the IPC and under section 3(1) of the Protection of Women from Domestic Violence Act, 2005. Petitioner has also produced Ext.P7 which is the F.I.R. dated 12.04.2021 filed by Abdul Asees, who is the 2nd accused in Ext.P6 F.I.R., alleging that the petitioner had verbally abused the de facto complainant and his wife and also assaulted them on 12.03.2021 thereby committing offences under sections 447, 452, 341, 323, 294(b), 506, 509 and 34 I.P.C. The said Abdul Asees is the father-in-law of the petitioner. The case against the petitioner is thus arising out of a matrimonial dispute. 9. A perusal of the dates in the two F.I.R. reveal that Ext.P7 W.P.(C) No.19465/21 **-:7:-** F.I.R., which is in Crime No.233 of 2021 of the Kareelakulangara Police Station, was filed almost a month after the alleged occurrences on 12.03.2021 and further after the petitioner filed the F.I.R. against her in-laws. It is clearly evident from Crime No.233 of 2021 of the Kareelakulangara Police Station that the said crime is subsequent in point of time and the petitioner has not been arrested nor has she been summoned by the police. In such circumstances, there is no reason to assume that petitioner was aware of the pendency of crime or even alleged to have suppressed material information. 10. Further, this Court has held in **Muhammed v. Union of India and Others** (2018 (4) KHC 945), that the word ‘pending criminal proceedings’ does not include a mere registration of FIR so as to attract section 6(2)(f) or section 10(3)(e) of the Passports Act, 1967. Relying upon the said decision in Muhammed’s case, this Court had again held in **Jayan V.M. @ Jayasoorya v. Union of India and Others** (2018 KHC 823), that mere registration of crime will not be sufficient to attract either section 6 or section 10 of the Passports Act and since by registration of a crime, no case can be regarded as pending in the criminal court, it does not amount to **-:8:-** W.P.(C) No.19465/21 suppression of a material fact. This Court had also held that passport issuing authority must distinguish between serious crimes and family disputes masquerading as criminal offences for infracting the fundamental right to travel of one of the spouses in a matrimonial dispute. 11. Viewed in the above manner, it is seen that no crime can be said to be pending against the petitioner not only because the petitioner asserts and affirms that she was not aware of the registration of F.I.R. in Crime No.233 of 2021 before the Kareelakulangara Police Station but also due to the position of law as declared by this Court in Muhammed’s Case (supra). Thus, it cannot be said that petitioner had suppressed any material information warranting even issuance of a show-cause notice to the petitioner. This exercise of extraordinary jurisdiction is warranted in the case, since, a direction to the 2nd respondent to merely consider petitioner's explanation and pass appropriate orders would delay and deny petitioner's right to travel abroad and seek employment, which is evident by Ext.P10. 12. In such circumstances, I set aside Ext.P3 and Ext.P9 and direct the passport issuing authority, the 2nd respondent, to process **-:9:-** W.P.(C) No.19465/21 petitioner's application for re-issuance of a passport and issue the same to the petitioner, as expeditiously as possible, disregarding the existence of Crime No. 233 of 2021 of Kareelakulangara Police Station, if there are no other legal interdiction in issuing the passport. The passport shall be issued within a period of seven days from the date of receipt of a copy of this judgment. The writ petition is allowed as above. **Sd/BECHU KURIAN THOMAS JUDGE** vps W.P.(C) No.19465/21 ## **-:10:-** ## **APPENDIX OF WP(C) 19465/2021** **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT BEARING NO. N. 3311354 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 23.08.2021.** - **EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 30.08.2021 BEARING NO. SCN/311159095/21.** - **EXHIBIT P4 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 02.09.2021.** - **EXHIBIT P5 TRUE COPY OF THE ORDER OF THE JFCM -I, HARIPAD, DATED 17.02.2021 IN CMP NO. 524/2021.** **EXHIBIT P6 TRUE COPY OF THE FIR BEARING NUMBER 0191/2021 DATED 15.03.2021.** - **EXHIBIT P7 TRUE COPY OF THE FIR IN CRIME NO. 0233/2021 DATED 12.04.2021.** - **EXHIBIT P8 TRUE COPY OF THE OUT-PATIENT TICKET DATED 12.03.2021 ISSUED AT 12.31.16 PM.** - **EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NUMBER SCN/31198413/21DATED 13.09.2021.** **EXHIBIT P10** **TRUE COPY OF THE OFFER LETTER ISSUED TO THE PETITIONER BY CARE FIRST MEDICAL CENTRE, DUBAI, UNITED ARAB EMIRATES DATED 14.09.2021.**