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2011 Supreme(Guj) 546
2012 (2) GLR 1210
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ABHILASHA KUMARI
MOKSH S/O VISHAL RABDUA AND RUCHI PATEL – Petitioner (s)
Versus
STATE OF GUJARAT & 2 - Respondent(s)
SPECIAL CIVIL APPLICATION No. 15029 of 2011
Decided on : 19/10/2011
Mr.Suresh Bhatt for HL PATEL ADVOCATES for Petitioner (s): 1,
Ms.Asmita Patel,learned ASST.GOVERNMENT PLEADER for Respondent(s): 1,
MR HRIDAY BUCH,learned Central Government Standing Counsel for Respondent(s): 2 - 3.
Headnote:
Oath Act, 1969 - Section 3 - Passport Act, 1967 - Section 24(2)(c) - Passport Rules, 1980 - Rule 5 - Constitution of India, 1950 - Article 226 - Seeks to issue appropriate directions to respondent No.2 to produce any material justifying direction containing in Annexure A to Passport Application - Held, Judicial Magistrate has powers to administer oaths and affirm affidavits in discharge of duties - Annexure "G" is the Declaration of the applicant parent or guardian, if the passport is for a minor (one parent not given consent) and is to be sworn in the form of an affidavit before a Judicial Magistrate on non-judicial stamp paper - The form at Annexure "G" has been prescribed under Rule 5 of the Passport Rules, 1980 - Section 24(2)(c) of the Passport Act, 1967, empowers the framing of Rules and it is under this provision of law that Rules have been framed. Rule 5, in turn, prescribes the Form containing Annexure "G" - contents of the Criminal Manual would not apply to the facts and circumstances of the present case as the prescribed form containing Annexure "G" is a requirement under Rule 5 of the Passport Rules, 1980 - Impugned order passed by Additional Judicial Magistrate, First Class is quashed and set aside - Petition allowed
1. Rule. Ms.Asmita Patel, learned Assistant Government Pleader, waives service of notice of Rule for respondent No.1. Mr.Hriday Buch, learned Central Government Standing Counsel, waives service of notice of Rule for respondents Nos.2 and 3. On the facts, and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being heard and finally decided, today.
2. This petition under Article 226 of the Constitution of India has been preferred, with the following prayers:
“(A) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or writ in nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the instruction containing that single deserted woman should swear affidavit before Judicial Magistrate as per proforma Annexure A to the Passport Application Form. In alternative:
B) Your Lordships would be pleased to issue a writ of Certiorari or writ in nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order Annexure B2 to this petition and further directing the Ld. Chief Judicial Magistrate to affirm the Affidavit His Honour.
(C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may kindly be pleased to issue appropriate directions to the respondent No.2 to produce any material justifying the direction containing in Annexure A to the Passport Application.
(D) The Hon'ble Court may be pleased to grant such other and further relief and/or order in the interest of justice in favour of the petitioners.”
3. At the outset, Mr.Suresh Bhatt, learned advocate for HL Patel Advocates for the petitioner submits that he is not pressing the prayer made at paragraph 15(A) of the petition.
4. The brief facts of the case, relevant for the decision of the petition, are that the marriage of the petitioner with Vishal Pankajbhai Rabdu, took place on 15-12-2005 as per Hindu rites and rituals. A male child named Moksh, was born out of the said wedlock, on 5-1-2010. It is the case of the petitioner that she has been deserted by her husband and is staying with her parents. The petitioner applied for a Passport for her son Moksh, to respondent No.3, on 23-8-2011. Respondent No.3 called upon the petitioner to swear an affidavit declaring that she is a deserted lady and that her son is in her custody ever since delivery and during her separation, before a Judicial Magistrate. The petitioner approached the learned Additional Judicial Magistrate, First Class, Ahmedabad (Rural), Mirzapur for affirmation of the affidavit, as per Annexure “G”, as required under Rule 5, of the Passport Rules,1980. However, the request of the petitioner for affirmation of the affidavit has been turned down by the learned Judicial Magistrate, by order dated 12-9-2011, on the ground that there is no provision of law empowering him to affirm such an affidavit. Aggrieved thereby, the petitioner has approached this Court, by way of the present petition.
5. An affidavit-in-reply has been filed by respondent No.3, wherein a stand has been taken that as per Section 3 of the Oaths Act, 1969, the learned Judicial Magistrate has the power to affirm an affidavit, as stated in Annexure “G” of the Passport Rules, 1980.
6. Heard Mr.Suresh Bhatt, learned advocate for the petitioner and Mr.Hriday Buch, learned Central Government Standing Counsel for respondents Nos.2 and
3. No stand has been taken by the learned Assistant Government Pleader, as the State of Gujarat is not a contesting party.
7. It is submitted by the learned advocate for the petitioner, that the impugned order passed by the learned Additional Judicial Magistrate, First Class, Ahmedabad (Rural), Mirzapur, rejecting the application of the petitioner on the ground that the petitioner has not mentioned the provision of law under which the application has been filed and that under the Criminal Manual, the Courts have no power to admi
