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2013 DIGILAW 943 (KAR)

Kum Amitha Shivaram v. Union of India

2013-08-20

A.S.BOPANNA

body2013
Judgment : 1. The petitioner is before this Court calling in question the proceedings in Crime No.15/2012 of Tilaknagar Police Station pending on the file of the II Addl. CMM, Bangalore City. Consequent to the same, the petitioner is also seeking for issue of writ to quash the cancellation of the passport made by the second respondent on 09.05.2011 at Annexure-G. Further, the petitioner has sought for incorporation of the correct date of birth of the petitioner as 18.01.1994 while issuing the fresh passport. 2. The case in brief is that the mother of the petitioner had intended to obtain a passport in the name of the petitioner. In that regard, an application had been submitted. In the said application, the date of birth of the petitioner was indicated as 18.09.1993. At the point when application was made seeking for issue of passport in the name of the petitioner, she was aged about 4 years and 3 months. Subsequently, since an error had been noticed in mentioning the date of birth, the petitioner with bonafide intention of seeking correction of the same, had also admitted the error therein and had paid a sum of Rs.1,000/- to compound the same. At an earlier point, a suit was also filed seeking declaration of the correct age of the petitioner and also for necessary direction to the respondents by way of mandatory injunction to incorporate the correct date of birth. In the meanwhile, respondents No.1 and 2/Passport Authorities had filed a complaint seeking prosecution against the petitioner for furnishing wrong date of birth and obtaining the passport. The proceedings was sought under Section 420, 465, 471 of I.P.C. and also as an offence under Section 12 B of the Passport Act, 1967. The jurisdictional police had on verification of the facts, filed a 'B' report. Respondent No.2 herein has filed a protest petition which is pending consideration. The petitioner in that light has approached this Court to quash the proceedings in Crime No.15/2012 initiated at the instance of second respondent and for consequential reliefs as noticed above. 3. Respondents No.1 and 2 have filed their objection statement enclosing thereto the documents relied on by them. It is their case that the date of birth of the petitioner is wrongly mentioned as is evident from the application form for issue of passport and also in the application for renewal of the passport. 3. Respondents No.1 and 2 have filed their objection statement enclosing thereto the documents relied on by them. It is their case that the date of birth of the petitioner is wrongly mentioned as is evident from the application form for issue of passport and also in the application for renewal of the passport. In that regard, it is contended that when such false declaration had been made and passport had been obtained, necessary action was required to be initiated. The respondents also referred to two birth certificates which had been relied on by the petitioner before the Court below. In that regard, it is the further contention that since the suit filed by the petitioner herein in O.S.No.6906/2009 was ultimately dismissed on 20.10.2010, the second respondent has thereafter found it necessary to take action as the petitioner had committed an offence under the provisions of the Indian Penal Code as well as the Passport Act. Hence, the respondents seek to justify their action. 4. In the light of the rival contentions, the fact that an application had been made on behalf of the petitioner is evident from the record and in the said application, the date of birth of the petitioner was mentioned as 18.09.1993 and the same was also incorporated in the passport which had been issued in favour of the petitioner. The undisputed fact is that at that stage, the petitioner was hardly aged about 4 years and 3 months. Even at the time of renewal of the passport, she was still a minor and the parents had made the application on behalf of the petitioner. If these aspects of the matter are kept in view, even for the second respondent to come to a conclusion that the mentioning of the wrong date of birth in the application and in that regard, the criminal proceedings are to be continued further, the respondents were required to establish more than the error said to have been committed so as to bring it within the mischief of a criminal offence that the petitioner had willfully disclosed the date of birth wrongly so as to obtain a passport which she would not have been otherwise entitled to. The mens rea and the motive would be relevant when such criminal offence is alleged. The mens rea and the motive would be relevant when such criminal offence is alleged. This become relevant moreso when the petitioner is being proceeded against when evidently she has not made the application as she was only 4 years of age and to allege cheating, forgery or using a forged document against her would not be sustainable. 5. Keeping this basic fact in view, if the Judgment in O.S.No.6906/2009 (Annexure-F) is perused, though the suit has been ultimately dismissed, what would be relevant for the instant purpose is as to which is the correct date of birth of the petitioner, since the same would be relevant for the other reliefs that have been sought in the instant petition. In that regard, it is noticed that the first issue that arose for consideration before the Civil Court is with regard to the date of birth of the petitioner. The findings rendered by the Court below is in the affirmative to come to the conclusion that the correct date of birth is 18.01.1994. 6. In such situation when in the first instance, the petitioner was a small baby of about 4 years and 3 months and in the second instance, she was still a minor and subsequently, the petitioner taking note of the error therein had bonafide believed that the compounding of the same would enable the corrections to be made and the passport to be issued in favour of the petitioner, has paid the fine of Rs.1,000/- as indicated from Annexure-J. That in itself cannot be taken as admission of the guilt of the petitioner for having committed a criminal offence so as to proceed with the complaint said to have been made by the second respondent. Further the jurisdictional police who had at the first instance registered the F.I.R. had looked into this aspect of the matter and taking note of these circumstances while investigating had filed 'B' report before the Court of the II Addl. CMM, Bangalore City, in Crime No.15/2012. It is only due to the protest petition that has been filed by the second respondent, the proceedings are sought to be continued to prosecute the petitioner for the alleged criminal offence said to have been committed. CMM, Bangalore City, in Crime No.15/2012. It is only due to the protest petition that has been filed by the second respondent, the proceedings are sought to be continued to prosecute the petitioner for the alleged criminal offence said to have been committed. Firstly, what is to be noticed is that even from the provisions of the Indian Penal Code that has been invoked and in the circumstance at the time of filing the application form, the petitioner was a small baby and thereafter still a minor child it cannot held against her as noticed above. The criminal proceedings against the petitioner therefore cannot be sustained. 7. To the said extent, I am of the opinion that the prayer (a) requires to be granted and the further proceedings in Crime No.15/2012 of the Tilak Nagar Police Station pending before the II Addl. CMM, Bangalore City, shall stand quashed. Insofar as the consequential reliefs that have been sought in the petition, I have already taken note of the fact that though the suit in O.S.No.6906/2009 has been ultimately dismissed, the finding with regard to the correct of date of birth is in favour of the petitioner wherein it is held that the correct date of birth of the petitioner is 18.01.1994. In that view, a direction is issued to the second respondent to issue a fresh passport in favour of the petitioner incorporating the correct date of birth as 18.01.1994 without reference to cancellation which has already been made. In terms of the above, the writ petition stands allowed. No costs.