Pendency of fir no ground for non issuance of passport: Madras HC 2017

 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13.03.2017

CORAM

THE HONOURABLE MR.JUSTICE V.PARTHIBAN

W.P.(MD) No.3927 of 2017

 

Abdul Razik :
Petitioner

Vs.

 

The Regional passport Officer,
Regional Passport Office,
Bharathi Ula road,
Racecourse Salai,
Madurai District. :
Respondent

 

Prayer : This Petition filed under Article 226 of Constitution of India for
the issuance of Writ of Mandamus to direct the respondent to issue passport
to the petitioner by considering his application taken on file as file
No.MD.2079877643917 in light of the judgement made by this Court in W.Jaihar
William Vs State of Tamil Nadu, 2014 2 CWC 684 within the time that may be
stipulated by this Court.

 

!For Petitioner : Mr.E.MareesKumar
For Respondent :Mr.G.Rajaraman

:ORDER

This writ petition has been filed for the issuance of a Writ of
Mandamus directing the respondent to issue passport to the petitioner by
considering his application taken on file as file No.MD.2079877643917 in
light of the judgement made by this Court in W.Jaihar William Vs State of
Tamil Nadu, 2014 2 CWC 684.

2.According to the petitioner, he is a resident of Tuticorin. He was
issued passport on 15.07.2012 and the same is valid upto 14.07.2022. He was
employed in Bahrain. He married on 04.09.2013. After marriage, the
petitioner had surrendered his passport for change of status from bachelor to
married and reapplied for reissue of passport on 30.12.2016. In the
meantime, the petitioner’s wife had given a police complaint against the
petitioner under Section 498-A of IPC and Section 4 of the Domestic Violence
Act. Taking note of the FIR lodged by the petitioner’s wife, the respondent
vide proceedings dated 21.02.2017 sought for an explanation from the
petitioner. According to the communication dated 21.02.2017, the petitioner
was involved in the offence as stated supra and called for explanation within
30 days. As per proceedings, the petitioner seems to have suppressed the
material information in his passport application. In response to the column
No.8 of the show cause notice, the petitioner had submitted his explanation
on 24.02.2017 as follows:-
?8.1Have you ever been charged with criminal proceedings or any arrest
warrant/summons pending before a court in India?’
From the reading of the above question it would be clear that, an
applicant is warranted to answer in affirmative only if he has been charged
of a criminal proceedings or any warrant/summons have been issued and are
pending any court of India. In other words the said question does not cover
a stage prior to filing of a charge sheet as a person is said to have been
charged with a criminal proceedings only when a competent criminal court of
jurisdiction, charges a accused of the offence after taking cognizance of the
same. As the criminal case against me is in the stage of an FIR alone and as
no court has taken cognizance of the same, I cannot be considered to have
been charged with a criminal proceedings and therefore, the answering of the
said question in question No.8.1 in negative is not suppression but is rather
a true statement. It would have been a misleading or a false statement if I
had answered the said question in affirmative. Therefore, there is no
suppression as alleged in the proceedings stated supra. In the like manner,
as no court has taken cognizance of the said criminal case, there is no
question of either summons or warrant being pending against me.?

3.That answer to be given in the form only when a person had been
charged of criminal proceedings under the Code of Criminal Procedure and
taking cognizance of the same. Mere pendency of the FIR cannot be construed
as pendency of criminal proceedings. Therefore, the petitioner had not
suppressed any material information in his passport application.

4.Notwithstanding the explanation given by the petitioner, no action
has been taken by the respondent for re-issuance of passport and there is no
communication received from the petitioner. Hence, the petitioner has come
before this Court with the relief as stated supra.

5.Heard the learned counsel appearing for the petitioner and the
learned counsel appearing for the respondent.

6.The learned counsel appearing for the petitioner placed on a decision
reported in 2014(2) CWC 684 (M.Jaihar William vs. State of Tamil Nadu).
According to the said decision, mere pendency of the FIR cannot be construed
as pendency of criminal proceedings, unless the Judicial Magistrate takes
cognizance of offence on filing of charge sheet of complaint and
investigation against accused.

7.The learned Judge of this Court taking note of various decisions
rendered on the subject matter, categorically concluded that mere pendency of
the FIR cannot be a bar for consideration of the claim for issuance of
passport. The learned Judge has clearly held in paragraph 10 of the said
decision as follows:-
?10.For the same proposition of law, the learned counsel for the
petitioners has also relied upon the judgment delivered by the Andhra Pradesh
High Court reported in 1994 Cri.L.J.257 [Mathumari China Venkatareddy and
others Vs. State of Andhra Pradesh], wherein it has been held that until the
charge-sheet has been filed, a Magistrate cannot be said to have taken
cognizance of any offence and that the Magistrate can take cognizance of the
offence and direct the issue of process only on receipt of a police report
and that till that stage is reached, he is said to be acting only as a
Magistrate controlling the investigation made by the police. It has been
further held in the said judgement as follows:-
?The judicial act commences only when the charge-sheet is in order and
the Magistrate proceeds further under Chapter XVI. Unless the charge-sheet is
in the official custody of the Court together with its accompaniments to be
furnished to the accused, it cannot be construed that there is a filing of
charge-sheet. Chapter XVI relates to commencement of proceedings before
Magistrates, process to be issued when Magistrate takes cognizance of the
offence.?

Therefore, it is clear that unless the Judicial Magistrate takes
cognizance of the offence, on filing of charge-sheet on completion of
investigation against the applicant, it cannot be said that the proceedings
are pending before the Criminal Court. Therefore, in my considered opinion,
the 3rd respondent cannot mechanically refuse to issue passport to the
petitioners, merely for the reasons that the FIRs are pending against the
petitioners. On receipt of the application for passport, the 3rd respondent
shall consider the same and pass appropriate orders.?

8.From the above, it could be seen that the present issue is squarely
covered in the above said decision rendered by the learned Judge of this
Court.

9.Following the abovesaid decision, the respondent is directed to
consider the application for re-issuance of passport submitted by the
petitioner without reference to the FIR lodged against him and issue
passport, if he is otherwise eligible for the same. The respondent shall
comply with the said direction on merits and in accordance with law, within a
period of four weeks from the date of receipt of a copy of this order.

10.With the above direction, this Writ Petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.

 

To

The Regional passport Officer,
Regional Passport Office,
Bharathi Ula road,
Racecourse Salai,
Madurai District..

 

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