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K.T. Joseph vs The State Of Kerala on 6 January, 2010

Kerala High Court
K.T. Joseph vs The State Of Kerala on 6 January, 2010
       

  

  

 
 
  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.

           ------------------------------------------
              W.P.C.NO.394 OF 2010
           ------------------------------------------
            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.

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