Smithlal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936** ## **Crl.MC.No. 3199 of 2014 ()** **--------------------------CRIME NO. 766/2012 OF PUTHUKKAD POLICE STATION, THRISSUR DISTRICT ---------------------** ## **PETITIONER :** **--------------------** **SMITHLAL, AGED 23 S/O.SUBRAMANIAN, KAPPANCHERY HOUSE VADAKKETHORAVU DESOM, THORAVU VILLAGE, PIN-680301.** **BY ADV. SRI.C.P.UDAYA BHANU** **RESPONDENT/COMPLAINANT : ----------------------------------------------** **STATE OF KERALA REPRESENTED BY THE S.I. POLICE, PUTHUKKAD (CRIME NO.766/12) 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 11-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 3199 of 2014 ()** **-------------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **-------------------------------------------** **ANNEXURE I: A COPY OF THE REPORT SUBMITTED BY THE RESPONDENT DATED 13-10-2012 BEFORE THE JFCM COURT, IRINJALAKUDA.** - **ANNEXURE II: COPY OF THE LETTER DATED 3-12-2013 ISSUED BY THE PASSPORT OFFICIALS.** - **ANNEXURE III: COPY OF THE FIR IN CRIME 761/12 OF CHALAKKUDY POLICE STATION.** **ANNEXURE IV: COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO ANNEXURE- II LETTER.** **ANNEXURE V: COPY OF THE ORDER IN CMP 54/2014 PASSED BY THE JFCM COURT, IRINJALAKKUDA.** ## **RESPONDENT(S)' EXHIBITS : NIL** **---------------------------------------------------------** ## **//TRUE COPY//** **P.S. TO JUDGE** ## **Mn** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.3199 of 2014 .................................................. Dated this the 11[th] day of July, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner challenging the order rejecting the application for permission to issue passport in C.M.P.No.54/2014 in C.P.No.137/2012 under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner was originally arrayed as 9[th] accused in Crime No.766/2012 of Puthukkad police station alleging offences under Sections 120B, 143, 147, 148, 341, 324 and 302 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act. Later he became an approver and he was deleted from the array of accused and shown as an approver. He is on bail now. He is having possibility of getting employment. For that purpose, he will have to get the passport. Since he is involved in the crime, without permission of the court, passport authorities will not issue temporary passport. So, for that purpose, he filed C.M.P.No.54/2014 in C.P.No.137/2012 before Crl.M.C.No.3199 of 2014 2 the Judicial First Class Magistrate Court, Irinjalakuda where the case was at that time pending and the application was opposed by the Assistant Public Prosecutor of that court by filing a detailed counter stating that he is involved in other cases also. The learned Magistrate by the impugned AnnexureV order dismissed the application stating that since the case has been already committed and it is pending before the Sessions Court, it is not proper for that court to grant permission and dismissed the application. Aggrieved by the same, the present petition is filed before this Court. 3. Heard the counsel for the petitioner and the learned Public Prosecutor. 4. The counsel for the petitioner submitted that he wants only a passport to be issued and he does not want to go abroad and without the consent of the court he will not go abroad. He has no objection in retaining the passport, if any issued, with the court. 5. The application was opposed by the Public Prosecutor on the ground that he is an approver and he is involved in other cases also. 6. It is an admitted fact that the petitioner was arrayed Crl.M.C.No.3199 of 2014 3 as 9[th] accused in Crime No.766/2012 of Puthukkad police station alleging offences under Sections 120 B, 143, 147, 148, 341, 324 and 302 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act. It is also an admitted fact that the petitioner has been declared as an approver later and he was deleted from the array of the accused and he was granted bail also earlier after he was declared as approver. It is also an admitted fact that investigation of the case is also over and case was committed and now pending before the 4[th] Additional Sessions Court, Thrissur as S.C.No.507/2013. As per Section 309 of the Code of Criminal Procedure, presence of the approver has to be procured and safeguarded till the disposal of the case. If he is not supporting the prosecution while he was examined in court, he has to be relegated back as an accused and has to be proceeded with in accordance with law. So once the case is committed to Sessions, the Magistrate will not have any power to entertain the application of this nature for granting permission to go abroad or no objection certificate to the passport officer to issue the passport as well. So the dismissal of the application on that ground by the court below cannot be said to be not correct. Crl.M.C.No.3199 of 2014 4 7. The counsel for the petitioner submitted that he will be available for evidence at any time in India and he will cooperate with the trial of the case. Further he does not want the passport to be given to him and he wants only a permission for direction to the passport authorities to issue the same and he has no objection in passport authorities retaining the passport till further permission is granted by this Court to release the same to him or he has no objection in directing the passport authorities to send passport to that court and keep the same under the custody of the court till the disposal of the case. However, considering the fact that the case is now pending before the Sessions Court, it is for that court to consider all those aspects and pass appropriate orders in the application considering the circumstances and also taking into consideration the principles laid down in **Asok Kumar v. State of Kerala** (2009 (2) KLT 712) for that purpose. So if an application is filed by the petitioner before the Additional Sessions Court, Thrissur for this purpose, then the learned Sessions Judge is directed to consider and dispose of that application in accordance with law . Crl.M.C.No.3199 of 2014 5 With the above directions and observations, the petition is disposed of. **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.3199 of 2014 6