1 WP.460-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.460 OF 2011 Anis Mohammad Hussain Mayyariwala. .. Petitioner. Versus The State of Maharashtra and another. .. Respondents. .... Mr.Ram Mani Upadhyay, Advocate for the Petitioner. Mr.Y.M. Nakhwa, A.P.P. for the State. .... CORAM : A. R. JOSHI, J. DATED : 5th APRIL, 2011. P. C. : 1. Rule. Rule is made returnable forthwith by consent of parties and the matter is taken for final orders. Heard rival submissions on this Criminal Writ Petition. 2. Present Writ Petition is filed for quashing the proceedings and charge-sheet in C.C. No.331/PW/2006 arising out of C.R. No.527/2003 registered by Sahar police station, Mumbai. Said criminal case is pending before the learned Metropolitan Magistrate, 22nd Court, Andheri, Mumbai for the offence alleged against the present petitioner punishable under Section 12(3) of 2 WP.460-11 the Indian Passport Act. 3. The allegations against the present petitioner are that he tried to travel abroad on or about 29th December, 2003 by flight for visiting a country by name Maseru Lesotho via Johansbarg. Apparently, such country is situated at Africa Continent. Present petitioner was having his Indian passport, boarding card and plane ticket. On that day, he presented himself at the immigration counter for checking. The concerned Officer i.e. person who lodged the first information report, then working at the Bureau of Immigration at International Airport, Mumbai found out that endorsement regarding a visa of Maseru Lesotho was appearing on page No.7 of the passport. However, it was ascertained through enquiry with the petitioner that said visa has been issued on 4th December, 2003 and present petitioner was not in the said country and as such apparently it was found out that the petitioner did not obtain the visa by remaining present in the consulate of such country Maseru Lesotho. It is also ascertained that said country do not have its Consulate anywhere in India and as such any such visa or other transfer documents were required to have been obtained from the 3 WP.460-11 said country itself. On enquiry with the petitioner and finding his answers as evasive, he was detained and thorough checking of the endorsement on his passport was conducted. On page-6 of the passport there was another immigration stamp of 20.10.1995. It was ascertained by the immigration officer that such endorsement was required to have been ascertained and scrutinized. This was so in view of the endorsement on page No.5 of the passport that on 21st October, 1995 the petitioner had arrived at Mumbai International Airport. Thereafter, detailed enquiry was held and said person was detained and it was revealed that present petitioner had sent his passport for obtaining visa and it was sent through his relatives. Apprehending contravention of the rules and mainly the rule as to the passport shall not be sent out of India unless it is taken by an authorized representative, a case was registered against the present petitioner being C.C. No.331/PW/2006 arising out of C.R. No.527 of 2003 of Sahar police station, Mumbai. 4. It is a factual position that earlier another Writ Petition was preferred before this Court before another Bench bearing Writ 4 WP.460-11 Petition No.3603 of 2010. It was filed under Section 482 of Cr.P.C. for quashing the same C.C. No.331/PW/2006. The another Bench (Smt.R.P. Sondurbaldota,J.) vide order dated 31st January, 2011 disposed of the said Petition with observation that during pendency of the said earlier Writ Petition, a discharge application was pending before the trial Magistrate. As such, directions were given to the trial Magistrate to dispose of such discharge application within period of four weeks from the date of the order. 5. Admittedly, on such directions of the earlier Bench, the matter was taken up before the Metropolitan Magistrate, Court No.22, Andheri; and vide order dated 7.2.2011 the discharge application was rejected with following order : “ O R D E R 1. Accused is discharged vide Sec. 239 of Cr.P.C. from the offence punishable U/secs. 465, 468, 471, 419, 420 of I.P.C. 2. Charge be framed against accused for the offence U/sec.12 Sub.Sec.(3) of the Indian Passport Act vide Sec. 240 of Cr.P.C. ” 6. After passing such an order on the discharge application, present Writ Petition is filed for quashing the entire complaint being C.C. No.331/PW/2006. 5 WP.460-11 7. After hearing rival submissions and considering the allegations against the present petitioner, in the opinion of this Court, it is not a case in which interference is to be exercised as per the provisions of Section 482 of Cr. P. C.. In the opinion of this Court, it is a matter of taking the evidence and it is a question of fact finding as to by which mode the passport of the present petitioner was sent by him out of India for obtaining visa from another country. In the writ jurisdiction, that aspect cannot be dealt with and it is not a fit case in which the matter can be entertained under the provisions of Section 482 of Cr.P.C.. Hence, the order : :: O R D E R :: [i] Criminal Writ Petition No.460 of 2011 is dismissed. Rule stands discharged. (A. R. JOSHI, J.) PPD