IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 394 of 2010(Q) ------------------------ CMP.4045/2009 of J.M.F.C.-I,KOCHI .................... (CR.NO.306/07 OF THOPPUMPADY POLICE STATION) PETITIONER(S): ------------------------- K.T. JOSEPH, AGED 54 YEARS, S/O. THE LATE K.V. THOMAS, KUZHIKKAT HOUSE, 50/1772, YUVAJANA SAMAJAM ROAD, KADAVNTHRA, ERNAKULAM, KOCHI -20. BY ADV. MR.M.AJAY RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE ADDITINAL CHIE SECRETARY AND PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, THE SECRETARIAT, THIRUVANANTHAPURAM. 2. THE STATION HOUSE OFFICER, THOPPUMPADY POLICE STATION, ERNAKULAM. 3. THE REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, ERNAKULAM. R1 TO R3 BY GOVERNMENT PLEADER MR. S.U. NAZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.394 OF 2010 ------------------------------------------ Dated 6th January 2010 JUDGMENT Petitioner filed C.M.P.4045/2009 before Judicial First Class Magistrate-I, Kochi for a “no objection certificate” for issuance of passport as he was shown as an accused in crime No.306/2007 of Thoppumpady police station, though a final refer report was filed on 17/4/2008 itself. By Ext.P7 order, the petition was dismissed. This petition is filed under Articles 226 and 227 of Constitution of India for quashing Ext.P7 order and for a direction to the third respondent, Regional Passport Officer to issue an Indian passport notwithstanding the pendency of crime No.306/2007. Case of the petitioner is that Wpc 394/2010 2 though he was shown as one of the accused in crime No.708/2006, crime No.711/2006 and Crime No.972/2004 of Central Police Station and crime No.1865/2005 and crime No.535/2009 of Baliapattam police station and crime No.124/2009 of Ernakulam Town South Police Station, Chief Judicial Magistrate, Ernakulam granted him no objection certificates in crime No.708/2006, 711/2006 and 972/2004 and Judicial First Class Magistrate-I, Ernakulam granted no objection certificate in crime No.1865/2005 and Judicial First Class Magistrate-II, Kannur granted no objection certificate in crime No.535/2009 and Additional Chief Judicial Magistrate, Ernakulam granted no objection certificate in crime No.124/2009. But learned Magistrate by Ext.P7 order alone did not issue a no objection certificate. It Wpc 394/2010 3 is contended that learned Magistrate has illegally refused to grant no objection certificate by Ext.P7 order. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Section 6(2) of the Passport Act provides that Subject to the provisions of the Act, Passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause(c) of Sub Section 2 of Section 5 of any one or more of the ground provided under clause (a) to (i). Under clause (f) if the applicant is alleged to have committed an offence pending before a criminal court in India, passport shall not be issued as provided under Sub Section 2 of Section 5. Section 22 empowers the Central Government, Wpc 394/2010 4 if it is of the opinion that it is necessary or expedient in the public interest so to do, by notification in the official gazette and subject to the said conditions it may specify in the said notification, exempt any person or class of persons from the operation of all or any of the provisions of the Act or Rules made thereunder. In exercise of the said power, as per notification dated 25/8/1993 the Ministry of External Affairs, exempted citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court and who produce orders from the court concerned permitting them to depart from India from the operation of clause (f) of Sub Section 2 of Section 6, subject to the conditions in clauses (a) to Wpc 394/2010 5 (d). By the said notification irrespective of the provisions of Section 6(2)(f), passport can be issued to an applicant on the conditions provided in the notification. Schedule III of Passport Act provides for the passport application form. Clause (17) therein relates to criminal proceedings. Under sub clause (b), an applicant has to reveal whether there is any criminal proceedings pending against him before any court in India and if so, details of the court, case number and relevant Sections of law are to be shown. Under clause (c) if answer to sub clause (b) is 'yes', the applicant has to furnish a non objection certificate from the competent court for grant of passport. It is in view of the said provisions, petitioner has applied for getting no objection certificate from the Wpc 394/2010 6 learned Magistrate. 4. Ext.P7 order itself shows that Assistant Public Prosecutor reported to the learned Magistrate that prosecution has no objection for issuing no objection certificate. The order also shows that though petitioner is shown as an accused in crime No.306/2007 of Thoppumpady police station, a final refer report has already been submitted on 17/4/2008 stating that it is a false case. Though a protest complaint was filed by the de facto complainant before the learned Magistrate and it is pending, no offence was so far taken cognizance. In such circumstances, though petitioner is shown as an accused in crime No.306/2007 of Thoppumpady police station, when a refer report has already been submitted in that crime after investigation before the court, Wpc 394/2010 7 though protest complaint was filed, as no offence is so far taken cognizance, technically there cannot be any objection to the petitioner to get a passport. In such circumstances, learned Magistrate was not justified in refusing to issue a no objection certificate on the grounds shown in Ext.P7 order. Question whether original passport which had expired long back, was irrecoverably lost or not is not very relevant for the purpose of issuing a no objection certificate. What is to be considered by the learned Magistrate is only whether presence of the petitioner is necessary for the purpose of the enquiry or trial in the case. I find no reason to refuse to grant a no objection certificate to the petitioner. Petition is allowed. Ext.P7 order is Wpc 394/2010 8 quashed. Judicial First Class Magistrate-I, Kochi is directed to issue a no objection certificate to the petitioner in crime No.306/2007 of Thoppumpady police station as sought for in C.M.P.4045/2009. It is for the third respondent to issue the passport to the petitioner in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.