IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.MC.No. 3497 of 2008() ------------------------- CRIME NO. 319/08 OF KONDOTTY POLICE STATION CMP.1999/2008 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... PETITIONER: ------------ SIRASH R.K., AGED 26 YEARS, S/O. KHADER, R.K.MANZIL CHOMPALA -P.O., VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENTS: STATE ------------------ STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3497 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of September, 2008 O R D E R The petitioner, who now faces indictment in a prosecution for offences punishable, inter alia, under Section 471 I.P.C. and Section 12(1)(b) of the Passport Act, prays that the passport which he was carrying to facilitate his travel to a foreign country, which was seized by the police and which has been produced before the learned Magistrate, may be directed to be returned to enable him to get the VISA stamp in the passport cancelled, so that he can claim refund of money paid for securing such VISA stamp. 2. The learned Prosecutor opposes the application on the ground that the passport is in the name of one Shameer. The petitioner was attempting to travel using the said passport. The name of the petitioner is only Sirash and release of the passport to him will not be justified. He further points out that the original passport will be required for a proper conduct of the Crl.M.C.No. 3497 of 2008 2 investigation and prosecution and release of the passport to the petitioner would cause very great interference with the investigation. In these circumstances the learned Prosecutor prays that the petition may be dismissed as the learned Magistrate was perfectly justified in dismissing the application. 3. I have considered all the relevant inputs. After discussions at the Bar, the learned counsel for the petitioner submits that the petitioner had not committed any contumacious act. He was trapped in the proceedings unnecessarily. He was to travel abroad and the travel agent had handed over the passport to the petitioner. He invested money to get the VISA stamp. Unless the passport is returned, the petitioner shall not be able to claim refund of the amount. The passport may be handed over to him subject to any condition. In the alternative, the petitioner shall apply before the Embassy of Saudi Arabia at Mumbai for cancellation of the VISA stamp. After making such application the petitioner shall request the Court to forward the passport to the Embassy and the Embassy may be directed to return the passport to the Magistrate himself after taking necessary action to get the VISA stamp on it cancelled as applied for by the petitioner. Crl.M.C.No. 3497 of 2008 3 4. The learned Prosecutor, after discussions at the Bar, submits that the State has no objection against the petitioner claiming refund if he is otherwise legally entitled to the same. Subject to appropriate safeguards, which shall ensure that the passport in question does not go into the hands of the petitioner to enable him to tamper with the same, the court may make appropriate arrangements, it is submitted. 5. Having considered all the relevant circumstances, I am satisfied that appropriate directions can be given and the impugned order can be modified. 6. In the result: a) This Crl.M.C. is allowed. b) The impugned order is set aside. c) The following directions are issued: i) The petitioner shall apply to get the passport produced by him substituted by certified photocopy. ii) He may apply to the Embassy for getting the VISA stamp on it cancelled. He may inform the Embassy that the passport shall be forwarded to the Embassy by the learned Magistrate. Thereupon, Crl.M.C.No. 3497 of 2008 4 along with an application submitted to the Embassy, the petitioner may apply to the learned Magistrate and the learned Magistrate on such application shall forward the original passport to the Embassy on condition that the petitioner executes a bond for Rs.1,00,000/- with two solvent sureties each for the like sum undertaking not to claim the passport and to ensure that the passport is returned by the Embassy to the learned Magistrate. The learned Magistrate shall forward the passport to the Embassy with direction to the Embassy to do the needful and return the passport to the court after the necessary action is taken without handing over the same to the petitioner. (R. BASANT) Judge tm