Shymesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936** **Crl.MC.No. 971 of 2013 () --------------------------** **CRIME NO.143/CR/OCW-III/PKD OF CBCID HEAD QUARTERS, THIRUVANANTHAPURAM.** **PETITIONER/ACCUSED: ------------------** **SHYMESH, S/O.KARUKAYIL MUKUNDAN, UPASANA, PONOTH ROAD, KALOOR P.O., ERNAKULAM DISTRICT.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN.** **RESPONDENT /STATE:** **------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.143/CR/OCW-III/PKD OF CBCID HEAD QUARTERS, THIRUVANANTHAPURAM).** **BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 971 of 2013 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE I : TRUE COPY OF THE BIRTH CERTIFICATE ISSUED BY THE CORPORATION OF COCHIN.** **ANNEXURE II : TRUE COPY OF THE DRIVING LICENCE ISSUED BY THE SUB REGIONAL TRANSPORT OFFICER, GURUVAYOOR.** **ANNEXURE III: TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.143/CR/OCW-III/PKD REGISTERED BY CBCID HEAD QUARTERS, THIRUVANANTHAPURAM.** ## **RESPONDENT'S ANNEXURES :** **ANNEXURE R1(a) : TRUE COPY OF THE LEGAL OPINION. ANNEXURE R1(b) : TRUE COPY OF THE PRINTOUT FROM PASSPORT AUTHORITY OF the ORIGINAL FILE NO.B028358/04. ANNEXURE R1(c) : TRUE COPY OF the PRINTOUT FROM PASSPORT INFORMATION NET.** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.971 of 2013 -----------------------------------------------Dated this the 1[st] day of July, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioner, who is the accused in Crime No.143/CR/OCW-III/PKD of CBCID, has approached this Court with the following prayer : _“ In the above circumstances, it is most humbly prayed that this Hon'ble Court may be pleased to quash all further proceedings in Crime No.143/CR/OCW-III/PKD of CBCID Head Quarters, Thiruvananthapuram as it is an abuse of process of court.”_ 2. Facts in brief, are as follows : Petitioner is an Indian citizen, now working in a bank in Dubai. He is implicated as accused in the above crime alleging an offence punishable under Section 12(1)(b) of the Passports Act, 1967( in short 'the Act'). Prosecution case is that the petitioner willfully changed his name and educational qualification in the application for passport with a view to **Crl.M.C No.971 of 2013 2** obtain a passport with fictitious identity. Prosecution contended that the petitioner having actual name as 'Shyamesh', wrongly stated his name as 'Shymesh' and obtained a passport. Further, he had passed S.S.L.C at the time of making the application. But he suppressed that fact and had shown his educational qualification as 8[th] standard. Prosecution contended therefore that these differences in the spelling of his name and educational qualification were intentionally made for securing a passport. 3. Heard Sri.K.K.Dheerendrakrishnan, learned counsel for the petitioner and Sri.Justin Jacob, learned Public Prosecutor. 4. Section 12(1)(b) of the Passport Act reads as follows : ## _“_ _**12. Offences and penalties.** - (1) Whoever -_ _(a) x x x x x_ _(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without_ **Crl.M.C No.971 of 2013 3** _lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or_ _(c) x x x x x_ _(d) x x x x x_ _(e) x x x x x_ _shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five thousand rupees or with both.”_ 5. Learned counsel for the petitioner submitted that the offence alleged against the petitioner by the prosecution is legally not sustainable. I have perused the records submitted by the Detective Inspector, CBCID, OCW-III, Thrissur Unit. Actually, petitioner is the 9[th] accused in Crime No.1268/2005 of Town East Police Station, Thrissur registered for handling counterfeit currency. During the course of investigation, it was revealed that the petitioner had changed his name and obtained a passport giving wrong details regarding name and educational qualification. Petitioner has produced documents as Annexures I **Crl.M.C No.971 of 2013 4** and II, viz; copies of birth certificate and driving licence to show that his name is 'Shymesh'. In the reports submitted by the Investigating Officer, it is mentioned that the name of the petitioner is shown as 'Shyamesh' in the admission register kept in Bharatiya Vidya Bhavan, Elamakkara, Ernakulam and also in the School Leaving Certificate. 6. Learned counsel for the petitioner submitted that even if we take note of the contention of the prosecution that the petitioner had wrongfully spelt his name in the passport application and had shown a different educational qualification, it will not constitute an offence under Section 12 of the Act. 7. On a careful reading of the provision, it can be seen that the offence under Section 12 of the Act is attracted only when a person knowingly furnishes any false information or suppresses any material information with a view to obtain a passport. Here, copy of the public documents produced by the petitioner would show that his name was spelt as 'Shymesh'. **Crl.M.C No.971 of 2013 5** Further, in the passport application even if he had stated that he had passed S.S.L.C, instead of showing the educational qualification as 8[th] standard, it does not make any difference in the matter of granting a passport, if he is found otherwise eligible. Therefore, the non mentioning of proper educational qualification cannot be stated to be a material information. In order to buttress the point that the allegations made by the prosecution against the petitioner will not constitute an offence under Section 12(1)(b) of the Act and also to contend that there is no suppression of material information, reliance is placed by the learned counsel for the petitioner on a decision rendered by Andhra Pradesh High Court in _**Dr.Madas Venkat Goud v. State of A.P**_ ( _**2010 K.H.C 7572).**_ Though the facts are not similar to the facts in our hand, the discussion made in the decision would show that the differences in spelling of the name of the petitioner and his educational qualification will not come within the scope and ambit of suppression of material information with **Crl.M.C No.971 of 2013 6** a view to obtain a passport. 8. Learned counsel for the petitioner further submitted that the prosecution is bad for non obtaining sanction under Section 15 of the Passports Act. Section 15 of the Act reads as follows : _“_ _**15. Previous sanction of Central Government necessary** .- No prosecution shall be instituted against any person in respect of any offence under this Act without the previous sanction of the Central Government or such officer or authority as may be authorised by that Government by order in writing in this behalf.”_ 9. To fortify this submission, learned counsel for the petitioner relied on a decision rendered by this Court in _**Oseela Abdul Khaker v. State of Kerala (2012(4) K.L.T 535).**_ Learned Single Judge of this Court considered the above provision and held as follows : _“When there is statutory interdiction_ **Crl.M.C No.971 of 2013 7** _prohibiting the prosecution of a person for any offence under the Act without the previous sanction of the Central Government or such officer or authority as may be authorised by the Government by an order in writing, prosecution of the petitioners in the above case is totally unjustified, and liable to be quashed.”_ 10. Learned counsel for the petitioner relied on a decision rendered by the Federal Court in _**Basdeo Agarwalla v. Emperor**_ ( _**A.I.R (32) 1945 Federal Court 16).**_ In that case, similar provision under the Drugs Control Order, 1943 was interpreted. It was held thus : _“In our view, the absence of sanction prior to the institution of the prosecution cannot be regarded as a mere technical The clause in was defect. question enacted the obviously for purpose of protecting the citizen, and in order to give the Provincial Government in every case a_ **Crl.M.C No.971 of 2013 8** _proper opportunity of considering whether a prosecution should in the circumstances of each particular case be instituted at all. Such a clause, even when it may appear that a technical offence has been committed, enables the Provincial Government, if in a particular case it so thinks fit, to forbid any prosecution. The sanction is not intended to be and should not be an automatic formality and should not so be regarded either by police or officials. There may well be technical offences committed against the provisions of such an Order as that in question, in which the Provincial Government might have excellent reason for considering a prosecution undesirable or inexpedient. But this decision must be made before a prosecution is started. A sanction after a prosecution has been started is a very different thing. The fact that a citizen is brought into Court and charged with an_ **Crl.M.C No.971 of 2013 9** _offence may very seriously affect his reputation and a subsequent refusal of sanction to a prosecution cannot possibly undo the harm which may have been done by the initiation of the first stages of a prosecution. Moreover in our judgment the official by whom or on whose advice a sanction is given or refused may well take a different view if he considers the matter prior to any step being taken to that which he may take if he is asked to sanction a prosecution which has in fact already been started.”_ 11. Reliance is also placed by the learned counsel for the petitioner on _**Yusofalli Mulla Noorbhoy v. The King**_ ( _**A.I.R (36) 1949 Privy Council 264)**_ , to contend a proposition that a court cannot be said to be competent to hear and determine a prosecution, the institution of which is prohibited by law, in the absence of a proper sanction. It is held that the prosecution launched without a valid sanction is a nullity. **Crl.M.C No.971 of 2013 10** 12. Learned Public Prosecutor has no case that before launching the prosecution against the petitioner, the Officers had obtained sanction required under Section 15 of the Act. Therefore, considering the fact that the offence alleged against the petitioner under Section 12(1)(b) of the Act is not made out and also that the sanction under Section 15 of the Act was not obtained before initiation of prosecution, I find that the criminal proceedings is a futile exercise. Therefore, it has to be terminated in the interest of justice. In the result, the petition is allowed. All proceedings in Crime _No.143/CR/OCW-III_ /PKD of CBCID Head Quarters, Thiruvananthapuram are hereby quashed. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** amk