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2022 DIGILAW 170 (KER)

Moosa Pattupara S/o. Pokker v. State Of Kerala

2022-02-17

KAUSER EDAPPAGATH

body2022
ORDER : Should an accused in a pending criminal case seek permission from the Court concerned for visiting a foreign country in terms of the Notification GSR 570(E) dated 25/8/1993 r/w S.6(2)(f) of the Passports Act, 1967 even if he holds a valid passport? -is the question falls for consideration in this Criminal Miscellaneous Case. 2. The petitioner is the sole accused in SC No.826/2017 on the file of the Fast Track Special Court, Manjeri (for short, the 'Court below'). The offences alleged against him are under Sections 376 of IPC and 31(1) of the Protection of Women from Domestic Violence Act, 2005. The petitioner appeared at the court below and was released on bail. Later on, he filed an application (Crl.MP No.405/2021) invoking S.317 of Cr.P.C (Section was wrongly quoted as S.205 of Cr.P.C.) to dispense with his personal attendance and to conduct the trial in his absence. The reason shown was that he was employed abroad and he wanted to go back to rejoin his employment. The application was dismissed by the Court below as per the impugned order holding that the petitioner has to file an application under the provisions of the Passports Act seeking permission to depart from India. The said order is under challenge in this Crl.M.C. 3. I have heard Sri.Thareeq Anver, the learned counsel for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor. 4. The learned counsel for the petitioner Sri.Thareeq Anver submitted that the petitioner is in possession of a valid passport and necessary travel document to leave India and, as such, there is no requirement to seek permission under the provisions of the Passports Act. The learned counsel further submitted that Annexure A1 affidavit would show that the petitioner has undertaken that he will not dispute his identity and further he has executed vakalath in favour of his counsel to conduct case on his behalf. The counsel also submitted that the petitioner is prepared to appear at the court below as and when required. The Court below ought to have allowed the application filed u/s 317 of Cr.P.C., submitted the counsel. 5. The Passports Act, 1967 (for short “the Act”) deals with the issuance of passport and rules regulating the departure of citizens of India to places outside the country. The Court below ought to have allowed the application filed u/s 317 of Cr.P.C., submitted the counsel. 5. The Passports Act, 1967 (for short “the Act”) deals with the issuance of passport and rules regulating the departure of citizens of India to places outside the country. S.3 of the Act says that no person shall depart from India, unless he holds a valid passport or travel document. The terms 'passport' and 'travel document' have been defined in the Explanation to S.3. S.4 deals with classes of passports and travel documents. An application for obtaining a passport or travel document has to be submitted u/s 5 of the Act. S.6 deals with the refusal of passport, travel document etc. S.6 reads thus: “6. Refusal of passports, travel documents. etc.— (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of subsection (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:— (a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India; (b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India; (c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country; (d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest. (2) Subject to the other provisions of this Act, the 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 on any one or more of the following grounds, and on no other ground, namely:— (a) that the applicant is not a citizen of India; (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India; (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India; (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country; (e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India; (g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court; (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; (i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.” [emphasis supplied] 6. The above provisions make it clear that sub-clause (1) of S.6 and sub-clause (2) of S.6 operates in two distinct situations. While sub-clause (1) deals with the power of the passport authority to refuse to make an endorsement for visiting any foreign country in the passport or travel document already issued, sub clause (2) deals with power of the passport authority to refuse to issue passport or travel document for visiting any foreign country. While sub-clause (1) deals with the power of the passport authority to refuse to make an endorsement for visiting any foreign country in the passport or travel document already issued, sub clause (2) deals with power of the passport authority to refuse to issue passport or travel document for visiting any foreign country. Under S.6(1), the passport authority can refuse to make an endorsement for visiting any foreign country on the enumerated grounds under that Section and under S.6(2), the passport authority can refuse to issue passport or travel document for visiting any foreign country on the enumerated grounds under that Section -and on no other ground. The pendency of a criminal case against the applicant is not a ground enumerated u/s 6(1). But, a bare reading of S.6(2)(f) would indicate that the passport authority shall be bound to reject the issuance of passport if criminal proceedings are pending against the applicant in any courts in India. 7. S.22 of the Act enables the Central Government to exempt any person or class of persons from the operation of all or any of the provisions of the Act or the rules made thereunder in public interest, by notification in the Official Gazette and subject to such conditions. Invoking the power conferred under S.22, the Government of India has issued notification GSR No.570(E) dated 25/8/1993 exempting citizens of India against whom proceedings in respect of offences alleged to have been committed by them are pending before a criminal Court in India and who produces orders from the Court concerned, permitting them to depart from India from the operations of the provisions of Clause (f) of Subsection (2) of S.6 of the said Act subject to the conditions enumerated therein. 8. S.6 deals with the refusal of issuance of passport whereas S.10 deals with impounding of the passport already issued. As per S.6(2)(f), the passport issuing authority shall be bound to reject the application for passport if criminal proceedings are pending in any Court in India whereas u/s 10(3) (e) of the Act, the passport authority may impound or revoke the passport or travel document if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a Criminal Court in India. If the passport has already been issued, its compounding or revocation is not automatic even if a crime is pending against the passport holder. It is discretionary on the part of the passport authority. The petitioner's passport had not been impounded in accordance with law and, hence, he is the holder of a valid passport. 9. Clause (f) of Sub-section (2) of S.6 of the Act read with Notification GSR No.570(E) dated 25/8/1993 make it clear that the necessity of obtaining an order from the criminal Court concerned to depart from India arises only in a case where the petitioner who is involved in a criminal case applies for issuance of a passport. 10. The right to travel abroad is a fundamental right guaranteed and protected under Article 21 of the Constitution of India. A Full Bench of this Court in Francis Manjooran and Others v. Government of India [ILR 1965 (2) Ker. 663] has held that the expression 'personal liberty' as used in Article 21 of the Constitution of India took in the right to travel. The Apex Court in Satwant Singh Sawhney v. D.Ramarathnam ( AIR 1967 SC 1836 ) has held that, under Article 21 of the Constitution of India, no person can be deprived of his right to travel except according to the procedure established by law. A similar view is reiterated in the decision rendered by a Seven Judge Bench of the Apex Court in Maneka Gandhi v. Union of India and Another [ (1978) 1 SCC 248 ]. It was held that no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and deprivation is effected strictly in accordance with such procedure. Thus, a person holding a valid passport cannot be interdicted nor can he be prevented from travelling abroad except by due process of law. True, the Passports Act regulates the right of a person to go abroad. The pendency of a criminal case is a bar u/s 6(2)(f) of the Act only for issuance of a passport so as to travel abroad. Mere pendency of a criminal case could not be cited as a bar to prevent a person from travelling abroad. The Passports Act nowhere restricts a person against whom a criminal case is pending and who holds a valid passport from travelling abroad. Mere pendency of a criminal case could not be cited as a bar to prevent a person from travelling abroad. The Passports Act nowhere restricts a person against whom a criminal case is pending and who holds a valid passport from travelling abroad. The pendency of a criminal case after the issuance of the passport only enables the passport authority to impound the passport invoking S.10. For these reasons, I hold that an accused in a pending criminal case who holds a valid passport need not obtain permission from the Court concerned for visiting a foreign country in terms of the Notification GSR 570(E) dated 25/8/1993 r/w S.6(2)(f) of the Passports Act, 1967. Only in a case where bail condition imposes any restriction in leaving the country, he needs to file petition to relax or modify the said condition. Thus, the Court below went wrong in insisting the petitioner to obtain an order under the Passports Act to go abroad. 11. S.317(1) of Cr.P.C. empowers the Judge or Magistrate to dispense with the personal attendance of the accused and to proceed with trial in his absence. Ordinarily the court should be generous and liberal under Ss.205 and 317 of Cr.P.C and grant exemption to the accused from personal appearance unless the presence is imperatively needed or becomes indispensable. The Apex Court in Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Limited [ 2001 (3) KLT 307 (SC)] held that, while dispensing with the personal appearance of the accused, the accused shall give an undertaking to the satisfaction of the court, that he would not dispute his identity and the counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. True, the above principles were laid down by the Apex Court while dealing with a summons case. However, in Puneet Dalmia v. C.B.I. ( AIR 2020 SC 214 ), the Apex Court held that the principles of grant of exemption as observed in Bhaskar (supra) can be made applicable to warrant cases as well. In Noorjahan v. Moideen ( 2000 (2) KLT 756 ), this Court has held that, in warrant cases, the Court has the discretionary power to exempt the personal appearance of the accused and to have the plea of the accused recorded through his counsel who is specifically authorized for that purpose. In Noorjahan v. Moideen ( 2000 (2) KLT 756 ), this Court has held that, in warrant cases, the Court has the discretionary power to exempt the personal appearance of the accused and to have the plea of the accused recorded through his counsel who is specifically authorized for that purpose. The decision in Noorjahan (supra) has been followed in Raju v. State of Kerala ( 2009 (3) KHC 14 ). Recently, this Court in Arun Baby v. State of Kerala (2021 (3) KLT Online 1014) has held that if the Court is satisfied that, in the interests of justice, the personal attendance of the accused before it need not be insisted upon, then the Court has the power to dispense with his attendance. I am of the view that the principles for granting exemption from personal appearance of the accused can be applied to appropriate sessions case as well. 12. The petitioner is employed at Riyadh, Saudi Arabia as a security watchman. He took leave and came to native place on 24/9/2020 only to make appearance in the above case. But due to Covid-19 restriction he could not go back. Thereafter he received a notice from his employer to report for duty on or before 13/11/2021. It was at that juncture he moved the application u/s 317 of Cr.P.C at the Court below. In Annexure A1 affidavit, he has specifically stated that he is the sole bread winner of his family and unless he goes back to Saudi Arabia, he would lose his job. He clearly undertook in the affidavit that he has absolutely no objection in proceeding with the trial in his absence and he has also stated that Adv.Shamsudheen K. will be appearing for him at the Court. He has also undertaken that he will not dispute his identity. In these circumstances, the Court below ought to have allowed his application seeking exemption from personal attendance. 13. The learned counsel for the petitioner Sri. Thareeq Anver submitted that the petitioner had already left to Saudi Arabia. Therefore, I am of the view that this Crl.M.C can be disposed of with a direction to the learned Magistrate to consider Crl.M.P.No.405/2021 in the absence of the petitioner and to pass orders in accordance with law and in the light of the findings and observations in this order. Therefore, I am of the view that this Crl.M.C can be disposed of with a direction to the learned Magistrate to consider Crl.M.P.No.405/2021 in the absence of the petitioner and to pass orders in accordance with law and in the light of the findings and observations in this order. The learned Magistrate is at liberty to impose appropriate condition to secure the presence of the petitioner as and when required. Crl.M.C is disposed of as above.