IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 394 of 2010(Q)
1. K.T. JOSEPH, AGED 54 YEARS,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE STATION HOUSE OFFICER,
3. THE REGIONAL PASSPORT OFFICER,
For Petitioner :SRI.M.AJAY
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/01/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.C.NO.394 OF 2010
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Dated 6th January 2010
JUDGMENT
Petitioner filed C.M.P.4045/2009
before Judicial First Class Magistrate-I,
Kochi for a “no objection certificate” for
issuance of passport as he was shown as an
accused in crime No.306/2007 of Thoppumpady
police station, though a final refer
report was filed on 17/4/2008 itself. By
Ext.P7 order, the petition was dismissed.
This petition is filed under Articles 226
and 227 of Constitution of India for
quashing Ext.P7 order and for a direction
to the third respondent, Regional Passport
Officer to issue an Indian passport
notwithstanding the pendency of crime
No.306/2007. Case of the petitioner is that
Wpc 394/2010 2
though he was shown as one of the accused in
crime No.708/2006, crime No.711/2006 and
Crime No.972/2004 of Central Police Station
and crime No.1865/2005 and crime
No.535/2009 of Baliapattam police station
and crime No.124/2009 of Ernakulam Town
South Police Station, Chief Judicial
Magistrate, Ernakulam granted him no
objection certificates in crime No.708/2006,
711/2006 and 972/2004 and Judicial First
Class Magistrate-I, Ernakulam granted no
objection certificate in crime No.1865/2005
and Judicial First Class Magistrate-II,
Kannur granted no objection certificate in
crime No.535/2009 and Additional Chief
Judicial Magistrate, Ernakulam granted no
objection certificate in crime No.124/2009.
But learned Magistrate by Ext.P7 order alone
did not issue a no objection certificate. It
Wpc 394/2010 3
is contended that learned Magistrate has
illegally refused to grant no objection
certificate by Ext.P7 order.
2. Learned counsel appearing for the
petitioner and learned Public Prosecutor
were heard.
3. Section 6(2) of the Passport Act
provides that Subject to the provisions of
the Act, Passport authority shall refuse to
issue a passport or travel document for
visiting any foreign country under clause(c)
of Sub Section 2 of Section 5 of any one or
more of the ground provided under clause
(a) to (i). Under clause (f) if the
applicant is alleged to have committed an
offence pending before a criminal court
in India, passport shall not be issued as
provided under Sub Section 2 of Section 5.
Section 22 empowers the Central Government,
Wpc 394/2010 4
if it is of the opinion that it is
necessary or expedient in the public
interest so to do, by notification in the
official gazette and subject to the said
conditions it may specify in the said
notification, exempt any person or class of
persons from the operation of all or any of
the provisions of the Act or Rules made
thereunder. In exercise of the said power,
as per notification dated 25/8/1993 the
Ministry of External Affairs, exempted
citizens of India against whom proceedings
in respect of an offence alleged to have
been committed by them are pending before a
criminal court and who produce orders
from the court concerned permitting them to
depart from India from the operation of
clause (f) of Sub Section 2 of Section 6,
subject to the conditions in clauses (a) to
Wpc 394/2010 5
(d). By the said notification irrespective
of the provisions of Section 6(2)(f),
passport can be issued to an applicant on
the conditions provided in the notification.
Schedule III of Passport Act provides for
the passport application form. Clause (17)
therein relates to criminal proceedings.
Under sub clause (b), an applicant has to
reveal whether there is any criminal
proceedings pending against him before any
court in India and if so, details of the
court, case number and relevant Sections of
law are to be shown. Under clause (c) if
answer to sub clause (b) is ‘yes’, the
applicant has to furnish a non objection
certificate from the competent court for
grant of passport. It is in view of the said
provisions, petitioner has applied for
getting no objection certificate from the
Wpc 394/2010 6
learned Magistrate.
4. Ext.P7 order itself shows that
Assistant Public Prosecutor reported to the
learned Magistrate that prosecution has no
objection for issuing no objection
certificate. The order also shows that
though petitioner is shown as an accused in
crime No.306/2007 of Thoppumpady police
station, a final refer report has already
been submitted on 17/4/2008 stating that it
is a false case. Though a protest complaint
was filed by the de facto complainant before
the learned Magistrate and it is pending, no
offence was so far taken cognizance. In such
circumstances, though petitioner is shown
as an accused in crime No.306/2007 of
Thoppumpady police station, when a refer
report has already been submitted in that
crime after investigation before the court,
Wpc 394/2010 7
though protest complaint was filed, as no
offence is so far taken cognizance,
technically there cannot be any objection
to the petitioner to get a passport. In such
circumstances, learned Magistrate was not
justified in refusing to issue a no
objection certificate on the grounds shown
in Ext.P7 order. Question whether original
passport which had expired long back, was
irrecoverably lost or not is not very
relevant for the purpose of issuing a no
objection certificate. What is to be
considered by the learned Magistrate is only
whether presence of the petitioner is
necessary for the purpose of the enquiry or
trial in the case. I find no reason to
refuse to grant a no objection certificate
to the petitioner.
Petition is allowed. Ext.P7 order is
Wpc 394/2010 8
quashed. Judicial First Class Magistrate-I,
Kochi is directed to issue a no objection
certificate to the petitioner in crime
No.306/2007 of Thoppumpady police station as
sought for in C.M.P.4045/2009. It is for the
third respondent to issue the passport to
the petitioner in accordance with law.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.