IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 32552 of 2009(L) -------------------------- PETITIONER(S): --------------- SUNEESH VELLACHERI, S/O.M.KUNHAPPAN, KUNIYAN, KARIVELLUR P.O., KANNUR DIST. BY ADV. SRI.KALEESWARAM RAJ SRI.SANDEEP GOPALAKRISHNAN RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI. 2. THE PASSPORT OFFICER, BYPASS ROAD, ERANHIPALAM, KOZHIKODE. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 & 2 GP SRI.P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32552 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE ORDER DATED 27.6.06 IN B.A.3757/06 EXT.P2- TRUE COPY OF THE ORDER DATED 30.10.09 ISSUED BY THE PASSPORT OFFICER, KOZHIKODE, TO THE PETITIONER (TRUE COPY) P.A TO JUDGE P.N.RAVINDRAN, J ------------------- W.P.(C).32552/2009 -------------------- Dated this the 23rd day of November, 2009 JUDGMENT The petitioner is the holder of Indian Passport bearing No.F3553649 that was issued by the Passport Officer, Kozhikode, on 6.6.2005. Before the petitioner went abroad, Crime No.248/06 of Payyanur Police Station was registered against him for the offences punishable under Sections 143, 147, 148, 341, 323, 324 and 308 IPC read with Section 149 IPC. After the crime was registered, the petitioner moved this Court for bail. By Ext.P1 order passed on 27.6.2006, this Court directed that in the event of the petitioner appearing before the Judicial Magistrate of First Class, Payyannur on 4.7.2006 at 11.00 am, and moving for bail, he shall be released on bail, on such terms and conditions as the learned Magistrate deems fit to impose. The petitioner accordingly appeared before the learned Magistrate and was enlarged on bail. He thereafter went abroad on 7.7.2006. He returned to India only on 29.8.2009. In the meanwhile, the case against him was split up and registered as LPC.59/2007. After his return to India, he surrendered before the Court below and W.P.(C).32552/2009 2 moved an application for enlargement on bail. He was accordingly enlarged on bail on 5.10.2009, the day he surrendered before the Court. In view of the fact that some of the offences alleged against the petitioner are exclusively triable by the Court of Session, the case against him was registered as C.P.No.81/2009. Thereafter, a committal order was also passed on 4.11.2009. 2. It appears that the learned Magistrate sent a letter dated 22.10.2009 to the Passport Officer, Kozhikode informing him that the petitioner is an accused in C.P.No.81/2009. The Passport Officer, Kozhikode, thereupon issued Ext.P2 letter dated 30.10.2009 to the petitioner directing him to surrender his passport, relying on Section 10 (3)(e) of the Passport Act, 1967. This writ petition was thereupon filed challenging Ext.P2 and seeking a direction to the respondents to refrain from implementing Ext.P2. The petitioner contends that before Ext.P2 was issued, he was not put on notice. He submits that the Court of the Judicial Magistrate of First Class, Payyannur, had not while enlarging him on bail, imposed a condition that he should surrender his passport. 3. The learned Assistant Solicitor General of India W.P.(C).32552/2009 3 appearing for the second respondent has filed a statement dated 18.11.2009 wherein it is stated that the Passport Officer acted on the basis of the letter sent by the Judicial Magistrate of First Class, Payyannur. It is stated that the passport has not so far been impounded and that therefore the Passport Officer will take a decision in the matter only after the petitioner's reply if any, is considered. 4. When this writ petition came up for hearing on 16.11.2009, the petitioner was directed to serve a copy of the writ petition on the learned Director General of Prosecutions and the learned Director General of Prosecutions was directed to get instructions as to whether the learned Magistrate had while granting bail directed that the petitioner should surrender his passport. The learned Government Pleader appearing for the State of Kerala submitted on instructions from the learned Director General of Prosecutions that no such condition has been imposed. He further submitted that persons residing abroad who are involved in criminal cases in India, have to seek the permission of the concerned court for leave of absence. He also submitted that since the petitioner was not in India from 7.7.2006, till he surrendered on 5.10.2009, the case against him was split up and W.P.(C).32552/2009 4 renumbered. He submitted that the petitioner, who was staying away from the jurisdiction of the court, must necessarily seek the leave of the court where the case against him is pending, to go abroad and that in the absence of any such permission, the petitioner cannot go abroad. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from the pleadings that the petitioner has not admittedly obtained permission from the trial Court to leave India after he came back to India on 29.8.2009. He left India initially on 7.7.2006 and returned only three years thereafter. It is not in dispute that the petitioner is an accused in a criminal case triable exclusively by the Court of Session. Nearly four years have passed after the criminal case against him was registered. As the petitioner has not admittedly obtained permission of the trial court to go abroad, I am of the opinion that he should initially move the trial court seeking permission to go abroad and in the event of the trial court granting permission to him to go abroad, it will be open to the petitioner to bring the said fact to the notice of the Passport Officer who shall thereupon act accordingly. In such circumstances, I dispose of this writ petition W.P.(C).32552/2009 5 with a direction to the second respondent to keep the proposal in Ext.P2 letter dated 30.10.2009 in abeyance for a period of one month from today in order to enable the petitioner to move the trial court seeking permission to go abroad. The Passport Officer shall pass further orders in the matter depending on the outcome of the petitioner's application for permission to go abroad. P.N.RAVINDRAN, Judge mrcs