IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 Crl.MC.No. 346 of 2008() ------------------------ CRMP.4763/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... PETITIONER: PETITIONER ------------------------------------------ ABOO CHETTIYANTHODI, S/O. KUNHIMOHAMMED, CHETTIYANTHODI HOUSE, PALLIKKUTHU, PATTIKKAD P.O., MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENTS: RESPONDENT ------------------------------------------------------ THE REGIONAL PASSPORT OFFICER, MALAPPURAM. BY ADV. SMT.D.P.RENU,CGC, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.346 of 2008 = = = = = = = = = = = = = = Dated this the 20th day of February, 2008 ORDER In this petition filed under Section 482 Cr.P.C, the petitioner challenges Annexure A4 order dated 17.01.08 in C.M.P.No.4763 of 2007 on the file of J.F.C.M-II, Perinthalmanna, rejecting his application for a declaratory order directing the Regional Passport Officer, Malappuram to correct the date of birth of the petitioner in his passport. 2. The facts leading to the filing of the Crl.M.C can be summarised as follows: The petitioner, Aboo Chettiyanthodi, is the holder of Indian Passport bearing No.Z 1554361 issued from the Consulate General of India, Dubai U.A.E on 3.6.2002. The date of birth of the petitioner as shown in his passport is 1970 without mentioning the month or the date. When the petitioner approached the Regional Passport Officer, Malappuram for processing his visa, he was directed to obtain a declaratory order Crl.M.C.No.346 of 2008 2 from the court for correcting his date of birth in the passport. According to the petitioner, as per his School records, namely the certificate issued by the Headmistress, Government High School, Pattikad (Annexure A3 herein), his date of birth is 20.5.1976. He first applied for the passport in the year 1992 and it was in the passport so obtained that his date of birth was shown as 1970. The learned Magistrate rejected his application on the ground that when he twice renewed his passport he had no case that his date of birth was wrongly entered and that if his date of birth was 20.5.1976, then he would have been a minor when he applied for a passport in the year 1992 and went abroad and if so it must be presumed that it was by concealing his minority that he had furnished his date of birth as 1970. The Magistrate, therefore, refused to grant the declaratory order, as prayed for by the petitioner. It is the said order which is assailed in this petition. Crl.M.C.No.346 of 2008 3 3. At the time of hearing this petition for admission, this Court wanted to know the source of power by which Judicial Magistrates were granting declaratory orders for correcting the date of birth and place of birth in passports. 4. I heard the learned counsel for the petitioner as also the learned Standing Counsel for the Central Government on the above question. Smt.Renu Karunakaran, the learned Standing Counsel made available to me the circulars issued in this behalf by the Ministry of External Affairs, Government of India. 5. The practice of the Passport Authorities insisting on the applicant to produce declaratory orders from the Judicial First Class Magistrates for the purpose of change of date or place of birth in passports was on the basis of the earlier Passport Information Booklet issued by the Ministry of External Affairs, Government of India, wherein there was a NOTE given in Clause IV of the Information Booklet. The said NOTE reads as follows: Crl.M.C.No.346 of 2008 4 “NOTE: Date of birth/place of birth once included in the passport will not be changed. For change, applicant will have to make a fresh application enclosing relevant evidence for obtaining fresh passport with correct date and place of birth along with a court order by a Judicial Magistrate directing the passport office to change the date or place of birth” 6. In the year 2001, the Ministry of External Affairs issued a circular (No.VI/401/2/5/2001)dated 18.4.01 to the following effect.:- “ As per the current practice, in case of change of date of birth/place of birth, the applicant is required to produce the original declaratory order from a First Class Judicial Magistrate. However, in view of the recent judgment given by the High Court of Judicature at Mumbai in CWP No.1072 of 2000 filed by Shri. Jigar Harish Shah, the following clarifications are issued: a) Where an applicant is seeking clarification/correction of a mistake in the entry on the date of birth/place of birth in the passport, PIA may after verifying/satisfying himself, affect the Crl.M.C.No.346 of 2008 5 correction treating the same as a technical correction. There is no need for a declaratory order in such cases. b) Where a competent authority issuing a birth certificate or an educational board registering a date of birth along with place of birth as valid were to issue any correction or amendment, PIA may effect the necessary amendment in the passport without insisting on a Court Order. As per the provisions of Section 21 of the general clauses Act 1997, a competent authority issuing a Certificate could also make necessary amendments to the same. (c) Where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e. School/educational authority and the applicant subsequently requests for a change on the basis of a certificate issued by another competent authority i.e. municipal authorities resulting in conflicting sources of valid proof, the PIS should direct the applicant to obtain a civil order from a competent court of jurisdiction, certifying the valid date of birth/place of birth.” 7. The above circular notices that the practice followed until then was to produce a declaratory order from a Judicial Crl.M.C.No.346 of 2008 6 First Class Magistrate and it was in the light of a judgment of the Bombay High Court that in the event of a conflict between the Educational Authorities and the Municipal Authorities regarding the date of birth of the applicant that the forum for getting the declaratory order was changed from that of a Judicial First Class Magistrate to a competent Civil Court. This is the true legal position also. A civil court alone can grant declaratory reliefs and unless statutorily conferred, a Magistrate cannot grant any such declaratory relief. In the year 2007, the Ministry of External Affairs issued another circular dated 29.10.07 on the subject of change of date of birth and place of birth in passports for the guidance of the Passport Issuing Authorities (“PIA” for short). The said circular reads as follows: Many countries insist that date/place of birth in all relevant documents of a person be same, for purposes of immigration, long term resident visas etc. Consequently, frequent requests are being received by PIAs in India, and some times Missions abroad for change in date of birth/place Crl.M.C.No.346 of 2008 7 of birth in passports already held by individuals. A fair number of court cases are also being filed by applicants for effecting changes in date of birth and place of birth. Instructions contained in Ministry's Circular of even number dated 18th April 2001 (copy enclosed) are by and large ignored by most PIAs. In this regard, all PIAs are advised that all cases relating to change of date of birth/place of birth in passports already held by an applicant be examined on following lines before asking for production of a Court order:- a) Where an applicant claims clerical/technical mistake in the entry relating to birth/place of birth in the passport and asks for rectification/correction: In all such cases the documents produced earlier as proof of date of birth/place of birth at the time of issue of passport may be perused (if not already destroyed) by PIA. In case, it is a clerical mistake either by the applicant or the PIA, date/place of birth correction may be allowed by issue of fresh passport booklet in the former case, by charging fee for fresh passport and in the latter, 'gratis'. There is no need for declaratory court order in such cases. b) Where a competent authority which Crl.M.C.No.346 of 2008 8 issued a birth certificate or an educational certificate issued any correction or amendment in date/ place of birth. PIA may effect the necessary amendment in the passport without insisting on a Court order provided that same document was produced earlier with the passport application Fresh fees will be charged. c) Where files have already been destroyed, the PIAs could use their discretion in correction of date of birth without a Court order, where such correction is only in months (not more than two years) and applicants provide satisfactory explanation that the same document(s) was provided at the time of initial passport application. Fresh fees will be charged. d) Where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e. School/ educational authority and the applicant subsequently requests for a change on the basis of a certificate issued by another competent authority i.e.Municipal authorities etc. resulting in conflicting documents for valid proof, the PIA should direct the applicant to procure an order from a First Class Judicial Magistrate to effect the change as per Passport Crl.M.C.No.346 of 2008 9 Manual 2001 (In some States, this function is discharged by Civil Magistrates) e) For those born on or after 26.01.1989, birth certificate is the only approval document, as already prescribed. 2. Pending cases, if any, may also be disposed of, if eligible under these instructions.” 8. Subsequently in the light of a decision rendered by the Punjab and Haryana High Court on 6.11.07, the Ministry revised Para (d) of the above circular dated 29.10.07 by directing that the said clause shall be read along with the following observations of the Punjab and Haryana High Court:- “We would like to emphasise that as and when the application is filed before a Passport Authority, and there appears to be a conflict between entries in the birth Certificate issued by the Registrar of Births and Deaths and the entry of birth in school leaving certificate, the entry in the birth certificate issued by the Registrar of Births and Deaths would prevail and except where the certificate is unreliable, Crl.M.C.No.346 of 2008 10 suspicious or appears to be procured or manipulated, parties should not be relegated to civil courts in a mechanical manner.” 9. The aforesaid amendment to the circular dated 29.10.07 was issued by another circular dated 15.01.08 which reads as follows: “In the Civil Writ Petition No.13722 of 2007 filed by Shri.Resham Singh Vs. Union of India, High Court of Punjab and Haryana has inter alia, delivered the following judgment on November 2007:- “We would like to emphasise that as and when the application is filed before a Passport Authority, and there appears to be a conflict between entries in the birth Certificate issued by the Registrar of Births and Deaths and the entry of birth in school leaving certificate, the entry in the birth certificate issued by the Registrar of Birth and Deaths would prevail and except where the certificate is unreliable suspicious or appears to be procured or manipulated, parties should not Crl.M.C.No.346 of 2008 11 be relegated to civil courts in a mechanical manner.” Ministry's revised instructions contained in para (d) of Circular No.VI/401/2/5/001 dated 29 the October 2007 may now be read together with the above judgment of High Court of Punjab and Haryana and stand amended to that extent.” 10. In the passport Information Booklet currently circulated along with all Passport applications, clause (b) under Section IV(A)(1) reads as follows: “(b) Proof of Date of Birth (attach one of the following): Birth certificate issued by a Municipal Authority or district office of the Registrar of Births and Deaths; Date of birth certificate from the school last attended by the applicant or any other recognized educational institution; or an Affidavit sworn before a Magistrate/Notary stating date/place of birth as per the specimen in ANNEXURE 'A' by illiterate or semi- illiterate applicants.” Of course the above clause does not apply to cases where there are conflicting dates of birth or places of birth in Crl.M.C.No.346 of 2008 12 certificates issued by two different authorities. 11. In 2003(3) 265 Jismol Joseph V. Union of India, a learned Single Judge of this Court held that the Judicial Magistrate has jurisdiction to decide the question regarding the correction of date of birth and place of birth in the passport. But, no specific source of power was traced in that ruling to confer the Judicial Magistrate of First Class to pass declaratory orders. The applicant in that case was asked by the Passport Authority by relying on the NOTE in the Information Booklet (to which mention was made earlier) to obtain a court order from a Judicial Magistrate. But as mentioned earlier, after the Ministry of External Affairs issued revised circulars and has deleted the NOTE in the revised booklets there is no provision now for approaching the Judicial First Class Magistrate for obtaining declaratory orders. If at all, any such declaratory order could be passed, it can only be by a competent Civil Court having jurisdiction. Hence the challenge against Annexure A4 order passed by J.F.C.M- II, Perinthalmanna has to fail. Crl.M.C.No.346 of 2008 13 12. According to the petitioner, the entry of the year 1970 in his passport against the column for showing the date of birth was made by the agent who submitted the application on his behalf and there was no supporting documents produced at that time regarding the date of birth of the petitioner. If so, the passport issuing Authority is free to reconsider the claim of the petitioner with reference to the extract of the admission register of the Government High School, Pattikad and carry out the necessary rectifications regarding the date of birth of the petitioner, in case such a course is possible in the light of the circulars referred to above. If, however, that authority finds it difficult to accept the said certificate it shall refer the petitioner to a competent civil court for getting a declaratory order regarding his date of birth. This Crl.M.C is disposed of as above. V. RAMKUMAR, JUDGE Crl.M.C.No.346 of 2008 14 sj