IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 Crl.MC.No. 1004 of 2008(E) ------------------------- CMP.132/2008 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... PETITIONER: PETITIONER/ACCUSED NO.2 ----------------------------------------------- BADARUDEEN, S/O. YOONUSKUTTY, PARAMKAMMOTTIL, PADINJATTEKKARA MURI, THEVALAKKARA VILLAGE, FROM KANNAKATHU KIZHAKKATTIL, PADINJATTEKKARA MURI, THEVALAKKARA VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS: RESPONDENT/COMPLAINANT --------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== CRL.M.C. No. 1004 of 2008 ========================== Dated this the 28th day of March, 2008. O R D E R The petitioner, who is the 2nd accused in Crime No. 132 of 2003 of Chavara Thekkumbhagam Police Station registered for offences punishable under Sections 465, 468, 471, 365 and 420 r/w Section 34 IPC and Section 12(b) of the Passport Act, 1967, challenges Annexure E order dated 21.02.2008 passed by the Judicial First Class Magistrate, Sasthamcotta rejecting the petitioner's application filed as C.M.P. No. 1324 of 2008 for return of passports of the petitioner as well as his son Abrarudeen for the purpose of renewal of visa and for going abroad to resume the petitioner's employment abroad. 2. The learned Public Prosecutor opposed the application submitting inter alia as follows:- The petitioner had married twice and in his first marriage with Rahumath, who is the de facto complainant, the petitioner had begotten a son and a daughter. In custody proceedings, the Family Court allowed the de facto complainant to retain the CRL.M.C.NO. 1004/2008 : 2 : daughter, but permitted the petitioner to have interim custody of the son with a direction that he should produce the son before the Family Court on the first and third Saturdays of every month. The petitioner committed default in complying with the said condition and subsequently on the strength of a forged birth certificate he obtained a forged passport for his son wherein the mother's name was shown as Shameera, who is the 2nd wife of the petitioner. The petitioner's earlier passport also showed the name of his grandfather in the place of his father. The petitioner subsequently obtained another passport showing his father's name correctly as Younus Kutty. On 23.05.2002, the petitioner took the boy abroad. Subsequently, when the petitioner returned from Gulf on 21.12.2007, he was arrested by the police and both the passports of the petitioner as well as his son were seized. Since the passport of the petitioner's son has been obtained on the strength of a forged document, it cannot be returned. 3. After hearing both sides and perusing the records, I am not inclined to accept the above submissions made by the Public Prosecutor. The petitioner who is the 2nd accused in the above CRL.M.C.NO. 1004/2008 : 3 : crime is Badarudeen. His first wife was the de facto complainant Rahumath. After the petitioner and the de facto complainant fell out, the petitioner married one Shameera who is the 1st accused in the case. In his first wife Rahumath, the petitioner had begotten a daughter and a son. In O.P(G &W) No. 55/99 on the file of the Family Court, Kollam there was an interim order by the Family Court giving interim custody of the daughter with the de facto complainant and the son with the petitioner(father). There was a direction to both the spouses to produce the children before the Family Court on the first and third Saturdays of every month. Annexure F is the final order dated 23.06.2001 of the Family Court wherein it is stated that the petitioner had been producing the son in compliance of the interim direction. What happened was that the OP itself was finally disposed of on 23.06.2001 wherein permanent custody of the son was given to the petitioner herein. It is also observed in the said order that the petitioner and his parents namely Younus Kutty and Nabeesa Beevi are looking after the boy with love and affection. Thus, with the passing of the said order dated 23.06.2001, the CRL.M.C.NO. 1004/2008 : 4 : petitioner was free to take the child to Saudi Arabia where he is admittedly employed. It is true that in the original passport obtained by the petitioner, his father's name was shown as Muhammed Kunju instead of Younus Kutty. Muhammed Kunju is the name of the grandfather of the petitioner. Subsequently, he got the mistake corrected through the Embassy and his father's name was correctly entered in the passport. In the case of the petitioner's son also, in the passport obtained on 28.05.2001, instead of Rahumath the name of the boy's mother was shown as Shameera, who is the 2nd wife of the petitioner. That also was got corrected by the petitioner through the Embassy and the boy's mother's name was correctly incorporated in the passport. The boy was taken to Gulf on 23.05.2002 which is after the final order passed by the Family Court. It was on 21.12.2007 when the petitioner returned from Gulf that he was arrested by the Chavara Thekkumbhagam police on the complaint of Rahumath and the two passports were seized and produced before the court below. CRL.M.C.NO. 1004/2008 : 5 : 4. In the light of the above factual narration, I see no legal hurdle in returning the passports of the petitioner as well as the son for renewal as well as for their travelling abroad. C.M.P. No. 1324/2008 filed by the petitioner before the court below shall accordingly stand allowed on the petitioner making an undertaking to produce the passports as and when required and on substituting the passports with photostat copies of the same. In case the petitioner and his second wife are charge sheeted by the police and in case the learned Magistrate also takes cognizance of the offence, the petitioner and his second wife can be permitted to seek personal exemption during the trial of the case on their undertaking that they will not raise any dispute regarding their identity. This Crl.M.C is disposed of as above. V. RAMKUMAR, JUDGE. rv CRL.M.C.NO. 1004/2008 : 6 :