IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WP(C).No. 7139 of 2010(Q) ------------------------- PETITIONER: --------------- ULLAS, S/O.HARIDASAN, KAITHAMANAKALATHIL HOUSE, PONNANI AMSOM, KADAVANAD DESOM, MALAPPURAM DISTRICT, NOW RESIDING AT HARI NIVAS, P.O.CHEMMANOOR, IRINGAPPURAM, KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.M.AJAY RESPONDENTS: --------------- 1. THE STATE OF KERALA (REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY AND PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT), THE SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CIRCLE INSPECTOR OF POLICE, PONNANI. 3. THE REGIONAL PASSPORT OFFICER, PASSPORT OFFICE, KOZHIKODE. BY GOVT. PLEADER SRI. K.S.SIVAKUMAR ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- W.P.(C). No. 7139 OF 2010 -------------------------- Dated this the 26th day of March, 2010 J U D G M E N T Petitioner is an accused in Crime No.67/2009 of Ponnani Police Station registered under Ext.P3 FIR, for the offences under Section 420 of Indian Penal Code and Section 12(1)(b) of Passports Act, 1967 based on a communication received from the Additional Director General of Police (Intelligence) Thiruvananthapuram. When petitioner appeared before the Police, he was arrested. By Ext.P4 order dated 3.2.2009, this Court released him on bail, finding that the investigation revealed that no offence under Section 420 of Indian Penal Code is made out and the offence committed if at all could only be under Section 12(1)(b) of the Passports Act, which is a bailable offence. The Police after investigation submitted Ext.P8 final report, alleging that petitioner committed an offence under Section 419 of Indian Penal Code on the basis that he first obtained Indian passport E 9099268 in the address of his father and later obtained Indian passport E 6327326 in the address of his mother by impersonation. This petition is filed under Articles 226 and 227 of the Constitution of India to quash Ext.P8 final report submitted under Rule 173920 of Code of Criminal W.P.(C) No.7139/2010 2 Procedure and to issue a writ of mandamus directing third respondent, the Regional Passport Officer, to permit the petitioner to pay the fine of Rs.5,000/- prescribed in the Passport Rules, for violation of Section 12(1)(b) of the Passports Act. 2. Learned counsel appearing for the petitioner and learned Government Pleader were heard. Learned Government Pleader also made available the case diary. 3. Learned counsel pointed out that Ext.P1 complaint was sent against the petitioner to Dubai Police with copy to the Secretary to Ministry of External Affairs as well as third respondent alleging that petitioner obtained two Indian passports and was engaged in cheating in Gulf countries and therefore action is to be taken against him. It is on that basis, the Additional Director General of Police (Intelligence) Thiruvananthapuram sent the communication based on which the case was registered under Ext.P3. As rightly pointed out by the learned counsel appearing for the petitioner, even though there is no allegation in Ext.P1 that the petitioner has forged any document, in Ext.P3 it is alleged that petitioner has forged documents of the banks at Thrissur and UAE, after obtaining W.P.(C) No.7139/2010 3 unauthorised passports and cheated the Banks and committed offences under Section 420 of Indian Penal Code and Section 12(1) (b) of the Passports Act. 4. The case diary reveals that after investigation it was found out no offence under Section 420 of Indian Penal Code was committed. Investigation also does not reveal that petitioner had forged any documents of the Bank, either at Thrissur or UAE. The only allegation raised in Ext.P8 final report submitted before the Court is that he had obtained two Indian passports, E 9099268 in 2004 and E 6327326 later, and the first passport was obtained from Kozhikode Passport Office in the address of his father and later the other from Cochin Passport Office in the address of his mother. Though it is alleged that petitioner obtained the second passport by impersonation, the allegation is not that the petitioner impersonated as somebody else. On the other hand, the only allegation is that by showing his addresses in the house of his mother petitioner has committed impersonation. 5. As rightly argued by the learned counsel appearing for the petitioner, an offence under Section 419 of Indian Penal Code is W.P.(C) No.7139/2010 4 attracted only if ingredients of the offence under Section 416 of Indian Penal Code is established. Section 416 provides that a person is said to 'cheat by personation' if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Therefore, to attract the offence under Section 419 as against the petitioner, prosecution must have a case that petitioner though obtained passport E 9099268 from Kozhikode Passport Office, later impersonated as another person and obtained passport E 6327326 from Cochin Passport Office. Prosecution has no such case. The only case is that for obtaining passport E 9099268 petitioner used the address of his father's house and for obtaining passport E 6327326 he used the address of his mother's house. If a person used two different addresses, it will not attract an offence under Section 419 of Indian Penal Code. Therefore, on the materials, an offence under Section 419 will not lie. Therefore, the cognizance taken on Ext.P8 final report, for the offence under Section 419 of Indian Penal Code, can only be quashed. W.P.(C) No.7139/2010 5 6. The learned counsel appearing for the petitioner submitted that petitioner has already approached third respondent to receive the penalty as provided under the Rules, for the offence under Section 12(1)(b) of the Passports Act and as the learned Magistrate has not taken cognizance of the offence under Section 12((1)(b) of the Passports Act in view of Section 15 of the Passports Act whereunder no prosecution is possible without the previous sanction of the Central Government or such officer or authority as authorised by the Government and so, it is not necessary to consider the question regarding the offence under Section 12 (1)(b) of the Passports Act in this petition. Petition is allowed. Cognizance taken on Ext.P8 final report and Crime No.67/2009 of Ponnani Police Station is quashed. M.SASIDHARAN NAMBIAR, (JUDGE ) vps W.P.(C) No.7139/2010 6 W.P.(C) No.7139/2010 7