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2015 DIGILAW 645 (KER)

Mohammed Hussain Pangadan v. State of Kerala

2015-06-10

ALEXANDER THOMAS

body2015
Order Alexander Thomas, J. 1. The petitioner is the accused in the impugned Annexure-B FIR in Crime No. 119/2012 of Wandoor Police Station for alleged offence punishable under Section 12(1)(b) of the Passport Act, 1967. The gist of the allegations against the petitioner in the instant crime is that the petitioner during the currency of a passport obtained by him in the year 1990 had obtained yet another passport vide No. V 594787 by furnishing false address and date of birth and later on, renewed the same and thus committed offence under Section 12(1)(b) of the Passport Act, 1967. It is common ground that the offence under Section 12(1)(b) of the Passport Act is a non-cognizable offence as envisaged in the Code of Criminal Procedure. After the registration of Annexure-B Crime and during the pendency of the investigation it is seen that the Investigating Officer concerned had subsequently added the offence under Sections 420, 465,468 and 471 of the IPC apart from the original offence under Section 12(1)(b) of the Indian Passport Act in the aforementioned Crime No. 119/2012 of Wandoor Police Station, Malappuram District. The case of the petitioner is that the petitioner was in fact in possession of two passports simultaneously and had surrendered both the passports before the Consulate General of India at Jeddah and applied for re-issue of passport. That the Consulate General of India at Jeddah, Saudi Arabia, being a competent Court of passport authority as envisaged under the Passport Act, 1967 and after following statutory procedure imposing a fine of Saudi Riyal of 475/-(equivalent to Indian Rupee Rs. 5,000/-) and other charges as provided under Section 12(1)(b) of the Passport Act and on remittance of the same issued a new passport to the petitioner. The petitioner contends that on remittance of the aforementioned fine, the Consulate General of India at Jeddah, Saudi Arabia issued new passport to him numbered as K8726745 on 01/12/2012 after receiving the fine amount in that regard and the passport was valid till 30/11/2013 as borne out by Annexure-F that the competent officer at the Office of the Consulate General of India at Jeddah has issued a letter dated 10/12/2012 addressed to the Director General of Passports, Passport Officer, Makkah Al Mukarrakah Region, Ministry of Interior, Jeddah intimating the issuance of passport under the provisions of Passport Act etc. as evident from Annexure-G produced on page 21 of the paper book which reads as follows: "Emblem CONSULATE GENERAL OF INDIA TAHLIA ST. POST BOX NO. 952 JEDDAH 21421 (SAUDI ARABIA) Tel. No. (966-2)6603779/6614027 Fax: 02-2840238 No. JED/C/405/71/2011 10/12/2012 To, Directorate General of Passports, Passport Office Makkah Al Mukarmmah Region, Ministry of Interior, Jeddah, Kingdom of Saudi Arabia. Dear Sir, Mr. MOHAMMED HUSSAIN PANGADAN, S/o. Mr. Mohammed Pangadan, an Indian national has been issued a valid Indian Passport No. K8726745 on 01/12/2012 valid till 30/11/2013 by this Consulate and this Passport is valid for all purposes to pass freely without let or hindrance. This Passport has been issued in lieu of his previous Passport No. F4969414 which was carrying the name Hussain Chanhadan Mohammed and date of birth etc. incorrectly. The errors have been rectified after following due legal procedure by this Consulate. It is hereby certified that the Passport holder has been cleared to possess his current Passport with the approval of the competent authorities in Government of India and hence it is requested that the holder may be afforded every assistance and protection of which he may stand in need. The Saudi authorities may please assist and cooperate in obtaining new resident permit as per the details of the present passport. Yours faithfully, sd/- seal C.D. Jeyakumar Vice Consul (Passport) Consulate General of India. Jeddah" Later due to the problem that the petitioner faced in the police verification for re-issue of his passport, due to the pendency of the impugned Crime No. 119/2012, the petitioner secured further clarifications from the Consulate General of India at Jeddah who issued Annexure-I letter dated 18/12/2014 addressed to the Circle Inspector of Police, Wandoor, Kerala, which reads as follows: Emblem CONSULATE GENERAL OF INDIA TAHLIA ST. POST BOX NO. 952 JEDDAH 21421 (SAUDI ARABIA) Tel. No. (+966-12)6603779/6614027 Fax: (+966-12) 2840238 No. SAUJPO 122511 Dated : 18/12/2014 To The Circular (sic) Inspector, Wandoor Kerala Dear Sir, Mr. Mohammed Hussain Pangadan. S/o Mohammed Pangadan an Indian National surrendered the following passports 1. Passport No. E4969414 issued at Jeddah on 14/11/2005 in the name of Mohammed Hussain Chanhadan. 2. Passport No. A9779910 issued at Jeddah on 10/11/2001 issued in the name of Mohammed Hussain Pangadan. Mohammed Hussain Pangadan. S/o Mohammed Pangadan an Indian National surrendered the following passports 1. Passport No. E4969414 issued at Jeddah on 14/11/2005 in the name of Mohammed Hussain Chanhadan. 2. Passport No. A9779910 issued at Jeddah on 10/11/2001 issued in the name of Mohammed Hussain Pangadan. He has been issued a valid Indian Passport No. K8726745 on 01/12/2012 valid till 30/11/2013 by this Consulate and this Passport is valid for all purposes to pass freely without let or hindrance. This Passport has been issued in lieu of his previous Passport No. F4969414 having incorrect particulars, after collecting prescribed penalty of SR 475/- (equivalent to Indian Rupees 5,000/-) + passport fee + affidavit fee with the approval of competent authority." sd/- C. Doss Jeyakumar Consul (Passport) Consulate General of India. Jeddah, (Saudi Arabia)" 2. The petitioner has raised several contentions in support of his prayer for interdiction with the impugned criminal proceedings. It is contended that the payment of the aforementioned penalty amount of Rs. 5,000/- as certified in Annexure-G and Annexure-I as certified by the Consulate General of India at Jeddah, Saudi Arabia is a payment of fine amount envisaged in Section 12(1)(b) of the Passport Act and therefore it should be lawfully treated as compounding the criminal offence as envisaged under Section 12(1)(b) of the Passport Act on payment of penalty amount of Rs. 5,000/- as envisaged in the provision of the Passport Act and therefore, the impugned criminal proceedings in respect of factual incidents herein stand lawfully terminated and so the authorities cannot resurrect any criminal proceedings based on these set of factual incidents by the present impugned criminal proceedings. Since very same factual incidents were considered and the competent passport authority has imposed a maximum fine amount of Rs. 5,000/- as envisaged in Section 12(1)(b) as certified in Annexures-G and I by the Consulate General of India at Jeddah, Saudi Arabia, the registration of the impugned crime for the same set of factual incidents would amount to compelling the petitioner to face double jeopardy which is constitutionally barred in view of the protection provision contained in Article 20(2) of the Constitution of India and provisions in Section 300 of the CrPC. The next contention is that the impugned Annexure-B FIR in Crime No. 119/2012 was registered by the Wandoor Police solely for the offence under Section 12(1)(b) of the Passport Act which is exclusively non-cognizable offence in which the police has no jurisdiction for registration of the crime and investigation. Further that the additional offence under Sections 420, 465, 468 and471 of the IPC was only subsequently added by the police much after the investigation of Crime No. 119/2012. Though those additional offence are cognizable offence, police will not get any jurisdiction for registration of the initial crime for non-cognizable offence so long as no prior permission for such purpose has been obtained from the jurisdictional Magistrate as mandated under Section 155(2) of the CrPC. It is further strongly urged by the petitioner that the impugned criminal proceedings are vitiated due to the reason that there is a fragrant violation of the statutory bar contained under Section 15 of the Passport Act, insofar as the impugned prosecution in the instant case has been instituted against the petitioner without the prior sanction of the Central Government or the authorised authority as mandated under Section 15 of the Passport Act. It is also contended that as the very factual basis for additionally including cognizable offences are inextricably connected to factual incidents which give rise to the offence under Section 12(1)(b) of the Passport Act, the lack of previous sanction as mandated under Section 15 of the Passport Act is a bar for institution of any prosecution. 3. Further it is contended by the petitioner that as the said cognizable offences were not disclosed and registered in the impugned Annexure-B FIR at its inception along with non-cognizable offence under Section 12(1)(b) of the Passport Act, the benefit available to the investigation as envisaged in Section 155(4) of the CrPC is not available in the instant case and that for these reasons, the impugned criminal proceedings are liable to be quashed. Further, it is contended that the respondent-police authorities will not have the liberty to re-initiate any further criminal proceedings arising out of these factual incidents after its quashment by this Court, by including the cognizable offences and non-cognizable offences simultaneously in any such proposed subsequent criminal proceedings etc. Further, it is contended that the respondent-police authorities will not have the liberty to re-initiate any further criminal proceedings arising out of these factual incidents after its quashment by this Court, by including the cognizable offences and non-cognizable offences simultaneously in any such proposed subsequent criminal proceedings etc. As all the alleged cognizable offences are inextricably interlinked and interconnected with the allegations arising out of alleged commission of offence under Section 12(1)(b) of the Act, which is a non-cognizable offence and as the basic factual incidents which constitute the foundation for alleged offence under Section 12(1)(b) stands lawfully terminated in view of imposition of maximum fine amount of Rs. 5,000/- as envisaged under Section 12(1)(b) of the Passport Act, there is no question of re-initiating these impugned criminal proceedings even by simultaneously including the non-cognizable offence and the above said cognizable offences after its quashment etc. 4. Per contra, Sri. Tom Jose Padinjarekkara, learned Additional DG of Prosecution and the learned Additional State Prosecutor appearing for the respondent-State of Kerala and the Investigating Officer in the crime submits that even if this Court holds that the basic foundation of impugned Annexure-B Crime solely for the non-cognizable offence under Section 12(1)(b) of the Passport Act is vitiated due to non-securing of prior permission of the Magistrate as envisaged under Section 155(2) of the CrPC, the contention of the petitioner that the impugned criminal proceedings that emanate out of basic factual incidents that constitute the foundation for the offence under Section 12(1)(b) of the Passport Act has been lawfully terminated in the facts of this case due to imposition and acceptance of maximum fine amount of Rs. 5,000/- by the competent Court of passport authority, Consulate General of India at Jeddah, Saudi Arabia, etc., is absolutely untenable. In this regard Sri. 5,000/- by the competent Court of passport authority, Consulate General of India at Jeddah, Saudi Arabia, etc., is absolutely untenable. In this regard Sri. Tom Jose Padinjarekkara Additional DG of Prosecution contended that careful and meticulous reading of Section 12(1)(b) of the Passport Act would reveal that no explicit or implicit provision therein has been engrafted therein for compounding of an offence and that what is envisaged is only that where it is proved that a person has committed the offence envisaged therein, he/she shall be punishable with imprisonment for a term which may extend to 2 years or with fine which may extend to five thousand rupees or with both and that this situation of imposition of fine amount up to the maximum of Rs. 5,000/-, can be said to be lawfully arise only in a case where the accused person concerned has been convicted for the above said offence under Section 12(1)(b) of the Passport Act through the judicial process and on such conviction through such due judicial process of law, the judicial forum/Trial Court has to impose a punishment of such conviction and at that stage the said Judicial Forum/Trial Court is given the discretion either to impose a punishment of imprisonment for a term which may extend to two years or in the alternative the Court may restrict the punishment of maximum fine amount which may extend to Rs. 5,000/- or with both. The provisions in Section 12(1)(b) does not in any manner even remotely envisage or even implicitly recognize the process of compounding of the offence envisaged therein prior to conviction by the Judicial Forum/Trial Court concerned. The provision contained in Section 12(1)(b) is in essence and substance drastically different from provisions in other special enactment which may envisage the provision for compounding of the criminal offences as in the provisions contained in Section 23A of the MMDR Act and such other similar provisions for compounding contained in similar such other special enactments etc. In that regard, the learned Additional DG of Prosecution and Additional State Prosecutor invited to the attention of this Court, the provision contained in Section 12(1)(b) of the Passport Act which reads as follows: "12. In that regard, the learned Additional DG of Prosecution and Additional State Prosecutor invited to the attention of this Court, the provision contained in Section 12(1)(b) of the Passport Act which reads as follows: "12. Offences and penalties.--(1) Whoever- (a) xxxx xxxx xxxx (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 lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document." The provision in Section 21(1) of the MMDR Act deal with penalties and which envisages the basis of criminal offence for that Act and the provision in Section 23A of the MMDR Act are envisaged provision for compounding the offence under that Act which reads as follows: "23A. Compounding of offences.--(1) Any offence punishable under this Act or any rule made thereunder may either before or after the institution of the prosecution, be compounded by the person authorised under Section 22 to make a complaint to the Court with respect to that offence on payment to that person, for credit to the Government, of such sum as that person may specify: Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) Where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forth with." Therefore it is contended by the learned Additional DG of Prosecution that earlier at the time of issuance of Annexure-G, there was no lawful initiation of criminal proceedings against the petitioner for the offence under Section 12(1)(b) of the Passport Act. Therefore, even if it is assumed that the payment of fine/penalty amount of Rs. 5,000/- was imposed by the consulate General of India at Jeddah as projected in Annexures-G & I, it cannot be treated in any manner as a lawful initiation of any criminal proceedings against the petitioner for offence under Section 12(1)(b) of the Passport Act. Therefore, even if it is assumed that the payment of fine/penalty amount of Rs. 5,000/- was imposed by the consulate General of India at Jeddah as projected in Annexures-G & I, it cannot be treated in any manner as a lawful initiation of any criminal proceedings against the petitioner for offence under Section 12(1)(b) of the Passport Act. The payment of fine as envisaged under Section 12(1)(b) can be countenanced lawfully only if the petitioner had faced the due judicial process for accusation for having committed the offence under Section 12(1)(b) of the Passport Act and that since no such lawful criminal proceedings have been initiated against the petitioner for the said offence under Section 12(1)(b) prior to registration of the impugned Annexure-B FIR Crime, the constitutional bar under Article 20(2) of the Constitution of India and the statutory bar under Section 300 of the CrPC based on the doctrine of double jeopardy is not attracted in the facts of this case. On this basis it is contended by the State Prosecutor that even if the quashment of the impugned criminal proceedings on the ground that the police has no jurisdiction to register a crime only for non-cognizable offence under Section 12(1)(b) of the Passport Act, as no prior permission of the Magistrate for such purpose was secured under Section 155(2) of the CrPC, still the police authorities will have no liberty to re-initiate the impugned criminal proceedings against the petitioner either by solely including the non-cognizable offence under Section 12(1)(b) of the Passport Act after getting due permission from the Magistrate as per Section 155(2) of the CrPC or by simultaneously proceeding by including both the non-cognizable offence as well as the cognizable offence etc. Section 155(2) & (4) of the CrPC read as follows: "155. Section 155(2) & (4) of the CrPC read as follows: "155. Information as to non-cognizable cases and investigation of such cases.- (1) xxxx xxxx xxxx (2) No Police Officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial (3) xxxx xxxx xxxx (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable." It is also contended by the learned Additional DG of Prosecution that as can be seen from the statement dated 18/02/2015 and the further statement dated 16/03/2015 filed by the Investigating Officer in this case that the investigation is still going on and such sanction as envisaged under Section 15 of the Passport Act is necessary only prior to the taking of cognizance of the offence by the competent Criminal Court or at the most as on the date of institution of Final Report/Charge-Sheet to be filed before the competent Criminal Court. 5. Heard Sri. P. Venugopal. learned counsel for the petitioner and Sri. Tom Jose Padinjarekkara, learned Addl. DG of Prosecution for the respondent-State of Kerala. 6. The provisions contained in Section 12(1)(b) has already been adverted to earlier. Consequent on conviction for the criminal offence under Section 12(1)(b) of the Passport Act, the maximum imprisonment term may extend only to two years. So going by Part II Classification of Offences Against Other Laws of 1st Schedule of the CrPC, as the offence under Section 12(1)(b) of the Passport Act, 1967 is a non-cognizable offence, as it is an offence of punishment with imprisonment for less than three years etc. In the instant case, indisputably Annexure-B Crime was registered solely including the offence under Section 12(1)(b) of the Passport Act. The prior permission of jurisdictional Magistrate for investigating into any cognizable offence has admittedly not been obtained by the police as mandated under Section 155(2) of the CrPC. Therefore the very foundation of the impugned criminal proceedings at Annexure-B as it was for only offence under Section 12(1)(b) of the Passport Act is ultra vires and without jurisdiction. The prior permission of jurisdictional Magistrate for investigating into any cognizable offence has admittedly not been obtained by the police as mandated under Section 155(2) of the CrPC. Therefore the very foundation of the impugned criminal proceedings at Annexure-B as it was for only offence under Section 12(1)(b) of the Passport Act is ultra vires and without jurisdiction. It is also the admitted case that the additional offences as those under Sections 420, 465,468 IPC were additionally incorporated by the Investigating Officer in the above said crime at a subsequent stage. Therefore, the deeming protective benefit envisaged in Section 155(4) of the CrPC is available if only all the offence including both the non-cognizable and cognizable offences are simultaneously disclosed which led to its simultaneous initiation and registration of FIR in the crime in question. It is indisputable that such simultaneous initiation of all those offences has not been made in the instant case and therefore protective deeming benefit under Section 155(4) CrPC is also cannot be availed of by the investigation/prosecution agency in this case. Section 15 of the Passport 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." It is also not seriously disputed by the respondents that the prior sanction of the Central Government/Authorised Authority as envisaged in Section 15 of the Act has not been granted in the instant case. Learned counsel for the petitioner relied on the decision of this Court as in Shymesh v. State of Kerala reported in 2014 (3) KLT 270 : 2014 KHC 3684 : 2014(3)KLJ 632, Oseela Abdul Khader and Another v. State of Kerala and Others reported in 2012 (4) KLT 535 : 2012 (4) KHC 346 : 2012 (2) KLD 876 : 2012 (4) KLJ 592 : ILR 2012 (4) Ker. 605 and Oommen Koshi v. State of Kerala reported in 1989 (2) KLT 384 : 1989 KHC 431 : 1989 (1) KLN 217 to contend the position that institution of the prosecution is vitiated also due to the reason that prior sanction as mandated under Section15 of the Passport Act has not been obtained in this case. 605 and Oommen Koshi v. State of Kerala reported in 1989 (2) KLT 384 : 1989 KHC 431 : 1989 (1) KLN 217 to contend the position that institution of the prosecution is vitiated also due to the reason that prior sanction as mandated under Section15 of the Passport Act has not been obtained in this case. In Oommen Koshy's case (supra) the facts mentioned in paragraph I thereof reveals that the investigation in respect of the alleged crime pertaining to the offence under Section 420 IPC and Section 12(1)(b) of the Passport Act was registered in that case and even after the lapse of more than six years no Final Report/charge-sheet was filed before the Court. But, in that case, the issue relating to applicability of Section 15 of the Passport Act in the matter of prior sanction is not seen raised. In Shymesh's case (supra), the challenge was essentially as against the crime registered in that case. It is not seen discernible from there as to whether investigation was completed and Final Report/charge-sheet was filed in that case. This Court in that decision quashed the impugned crime on the ground of lack of prior sanction as per Section 15 of the Passport Act. In Oseela's case (supra), the petitioners therein, who were accused of the offence under Section 12(1)(b) of the Passport Act after the registration of the impugned crime, Final Report/Charge-Sheet was also filed and which led to the pendency of impugned calendar case before the Trial Court and this Court quashed the impugned proceedings in the calendar case arising out of an offence under Section 12(1)(b) of the Passport Act on account of lack of sanction under Section 15 of the Passport Act. From the facts of the present case, it is seen that the investigation is not yet complete. The question as to whether the embargo engrafted under Section 15 of the Passport Act is only at the stage of institution of Final Report/Charge-Sheet/complaint or before taking cognizance etc., on the one hand or whether it is required even prior to the registration of the crime on the other hand is not seen explicitly raised and decided in any of these aforecited decisions. The learned Additional State Prosecutor contended that the embargo engrafted in Section 15 of the Passport Act on the ground of lack of sanction can come into play only at the point of submission of Final Report/Charge-Sheet/complaint or prior to the taking of cognizance by the competent Criminal Court and not at the threshold stage prior to the very such institution of crime and its investigation. In the view this Court proposes to take in the disposal of this case, this Court is of the considered opinion that rival contentions raised on the lack of prior sanction under Section 15 of the Passport Act need not be decided in this case now. So also, it is also to be held that in the light of the view that this Court proposes to take in disposal of the case, now it is not really necessary or required to decide whether or not the police/authorities concerned will have the liberty to re-initiate the impugned criminal proceedings even if it is quashed for such a question need be decided only if it is actually posed due to actual factual scenario at the appropriate stage in future. It is trite that such impugned criminal proceedings initiated by the police solely for a non-cognizable offence is liable to quashed in view of the legal principles in a catena of decisions as in Keshav Lal Thakur v. State of Bihar reported in 1996 (11) SCC 557 paragraph 3 etc. It is also to be observed that in view of the decision this Court proposed to take in the instant case, it is not necessary to decide on the rival contentions as to the applicability of the doctrine of double jeopardy and more particularly as to whether or not the imposition of the maximum fine amount of Rs. 5,000/- would amount to lawful termination of the impugned criminal proceedings arising out of Section 12(1)(b)of the Passport Act on the facts of the case. Indisputably, the sole offence registered in the instant case is under Section 12(1)(b) of the Passport Act which is a non-cognizable offence. No prior permission of the Magistrate was taken by the Police prior to registration and investigation of the crime involving solely the aforestated non-cognizable offence. Indisputably, the sole offence registered in the instant case is under Section 12(1)(b) of the Passport Act which is a non-cognizable offence. No prior permission of the Magistrate was taken by the Police prior to registration and investigation of the crime involving solely the aforestated non-cognizable offence. Other cognizable offences were additionally added at a subsequent stage of investigation and therefore protective deeming provision under Section 155(2) of the CrPC is not also available to the investigation agency. For these reasons alone this Court is of the considered opinion that the impugned criminal proceedings arising out of impugned Annexure-B Crime No. 119/2012 of Wandoor Police Station and all further proceedings that has arisen therefrom pending against the petitioner herein are to be quashed and it is accordingly so ordered. The question as to whether the respondents/authority concerned will have liberty in future to re-initiate the criminal proceedings arising out of factual incidents in question need not be decided in this case and all other rival contentions which are not decided in this case, are left open and reserved for respective parties for being agitated in appropriate proceedings at the appropriate stage, if it is so warranted. With these observations and directions, this Crl MC stands finally disposed of. Disposed off.