1 APLN.4027-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4027 OF 2010 Vishwajit Anand Danke. .. Applicant. Versus The State of Maharashtra and another. .. Respondents. .... Mr.S.M. Gorwadkar, Advocate for the Applicant. None for Respondent No.2. Ms.S.D. Shinde, A.P.P. for the State. Mr.Anand Walambe, API, Kothrud police station, is present. .... CORAM : A. R. JOSHI, J. DATED : 24th MARCH, 2011. P. C. : 1. Heard. Rule. Rule is made returnable forthwith by consent of the parties. 2. Present application is preferred by the applicant challenging the order passed by the J.M.F.C. (AC), Pune on the application 2 APLN.4027-10 dated 29th December, 2009 filed by present respondent No.2/orig.complainant in C.R. No.3160/2008 registered with Kothrud Police Station, Pune. 3. Heard learned Counsel Shri Gorwadkar for the applicant. Also heard learned A.P.P. Mrs.Shinde for the State. Though respondent No.2 is served, he is absent today. He was present before the Court on earlier date i.e. 2nd December, 2010 and had filed his affidavit in reply which is also perused by this Court which is dated 26th October, 2010. 4. Without going into the details of earlier criminal cases pending between the present applicant and original complainant/respondent No.2, suffice it to say that there were counter cases filed by rival parties against each other. The case in which the present applicant was named as accused is Sessions Case bearing No.352/2004 for the offence punishable under Section 307 read with 34 of Indian Penal Code, whereas the counter-case in which present respondent No.2 is accused is bearing Sessions Case No.156/2004 for the offence punishable under Section 302 of Indian Penal Code. 3 APLN.4027-10 5. During pendency of such cases, somewhere on or about 15th September, 2005 present applicant filed an application for getting new passport and accordingly after police report and due verification, such passport was handed over to him and on the strength of such passport, present applicant had visited out of India and came back. This happened much prior to the year 2008. However, on 30.10.2008 present respondent No.2 filed a complaint with Kothrud police station being C.R. No.3160/2008 for taking action against the present applicant for the offence punishable under Section 12(1)(b) & 12(2) of the Passport Act, 1967. The main contention against the present applicant is that he had not mentioned pendency of Criminal Case No.352/2004 then pending against him in the Sessions Court, Pune while submitting the application for obtaining passport and as such he had committed an offence punishable under Section 12(1)(b) of the Passport Act. 6. Subsequently investigation was conducted by the concerned Police Station and B-summary report came to be filed before the concerned J.M.F.C. Court. Said report is dated 16th April, 2009 in which it is specifically mentioned that while applying for the 4 APLN.4027-10 passport, present applicant had given details as to the pending criminal case against him and as such there was no substance in the complaint preferred by the present respondent No.2. When such report of B-summary was filed before the concerned J.M.F.C. Court, notice was issued to present respondent No.2/complainant and he filed his objection dated 29th December, 2009 praying for direction to the concerned police officer for further investigation. Said objection was considered by the J.M.F.C. Pune and vide order dated 8th February, 2010 directions were given, which reads as under : “ ORDER 1. The report be sent back to Kothrud Police Station. 2. PI Kothrud Police Station is directed to investigate upon the point in respect of the information about the pendency of criminal case against the accused given to the passport authority prior to obtaining the passport.” 7. During the arguments, learned Counsel for the applicant brought attention of this Court towards the passport application along with letter issued by the passport office, Pune addressed to the present applicant. Said documents are at page Nos.24 to 39 as 5 APLN.4027-10 annexures to the present Application. Mainly, the copy of the passport was obtained under Right to Information Act by the applicant from the Passport Authority. On internal page No.3 of the said passport application in column No.20(b) there is a specific mention to the following effect. “20(a) ..... (b) Are any criminal proceedings pending against you before a court in India ? If so, give name of court, case number and offence. YES, SESSIONS COURT, PUNE, SESSIONS CASE NO.352/04 IPC 34, 307.” 8. This revelation of the factual position brought to the notice of the Court on behalf of the applicant is definitely in consonance with the contents of the B-summary report dated 16th April, 2009 produced by the concerned police station before the J.M.F.C., Pune. Said B-summary report is at page-68 as annexure to the present Application. On careful scrutiny of these documents, definitely it is a case in which information as to pendency of criminal matter against the applicant was mentioned in the passport application. However, apparently this fact has been overlooked by the J.M.F.C., Pune. Moreover, what is mentioned in the impugned order is direction to the police to ascertain and 6 APLN.4027-10 investigate on the point in respect of information of pendency of criminal case. In fact, this point was already clarified vide report of B-summary dated 16th April, 2009 and now fortified by the contents of the passport application as mentioned above. 9. In that view of the matter, it must be said that the order of further investigation directed by J.M.F.C., AC Court, Pune is per se erroneous and as such required to be interfered with mainly considering the scope of any private individual to take recourse to the penal provisions of the Passport Act and considering the powers under Section 15 of the Passport Act as to necessity of previous sanction of the Central Government for institution of prosecution. Without entering into the realm of this aspect as to whether it is institution of a prosecution on a private complaint by an individual or whether the initiation of the proceedings at the hands of police machinery by way of filing a report, suffice it to say that on the earlier ground itself the impugned order is erroneous mainly for the reason that such information as to pendency of criminal case was already mentioned in the passport application. 10. In that view of the matter, there is every reason to interfere 7 APLN.4027-10 with the present order and hence present application is allowed. The impugned order dated 8th February, 2010 is quashed and set aside. Consequently, proceedings under C.R. No.3160/2008 registered with Kothrud Police Station, Pune are quashed and set aside. (A. R. JOSHI, J.) PPD