1. Petitioners are the accused, two in number, in a pending case on the file of the Judicial First Class Magistrate Court-V, Kozhikode. They are being prosecuted on police report imputing the offence punishable, as stated in such report, under Section 12 (1) (b) (2) of the Passports Act 1967, for short the ‘Act’. They have filed the above petition to quash the criminal proceedings in the case contending that no previous sanction of the Central Government has been obtained to prosecute them of the offence imputed under the Act.

2. Notice given, the additional 3rd respondent/de facto complainant has entered appearance, and filed a counter affidavit.

3. I heard the counsel on both sides and also the learned Public prosecutor.

4. The 1st petitioner in the case is a medical practitioner employed at Dubai, and the 2nd petitioner is her father. First petitioner is also the mother of a four year old child born out of her wedlock with the 3rd respondent. Matrimonial disputes between the spouses had led to severing of their marital relationship, with the custody of the child handed over to the mother. At a time while such disputes were prevailing, the 3rd respondent filed a complaint before the Police alleging that the petitioners have obtained a duplicate passport of the child suppressing material facts and making false representation that previous passport issued in her name had been lost. Crime registered thereof has led to indictment of the petitioners for the offence stated supra under the Act.

5. After completion of the investigation in the crime, it is seen, report was filed before the Magistrate in the month of July 2010. Annexure-1 is a copy of the agreement entered into by the 1st petitioner and the 3rd respondent, spouses, for severing their matrimonial relationship. That agreement is seen dated 18.09.2010. So, whatever be the complaint raised by the husband/3rd respondent which led to registration of a crime and later filing of a report by the Police, thereafter, on mutual terms and conditions the spouses settled their disputes and severed their relationship as husband and wife. Annexures produced in the case would also show that after effecting publication in a newspaper over the loss of the passport of her daughter, she applied for getting a duplicate passport for the infant.

6. When the above petition was presented, learned counsel for the petitioners brought to my notice that the 1st petitioner, employed in a Gulf country as a doctor, on her return and surrender before the magistrate in the case had been remanded to jail. To examine the circumstances which warranted such a drastic step against her, to incarcerate her, records of the case were called for.

7. Perusal of the records, and also the diary extract of the case, reveals that the order passed by the magistrate to remand her to prison on her surrender was not justified and it was a case of abuse of judicial authority. What is seen from the diary extract is that when summons was issued to the first petitioner, it was reported that she had left India. Order then passed by the Magistrate, on 18.02.2012, reads thus:

A2 present. A 1 left India. Issue 82 and 83 steps

And NBW against A1 to 22.05.2012.”

Till the above posting date, no warrant was issued against the 1st petitioner to secure her presence. When that be so, no steps under Sections 82 and 83 of the Code of Criminal Procedure, for short, the ‘Code’ could have been proceeded against her on the ground that she has absconded. Abscondence of a person against whom previously a warrant has been issued or concealment by such person to avoid execution of warrant, is a mandatory requirement to take steps under Section 82 of the Code. Learned magistrate then proceeded with steps for trial of the accused (A2) who had appeared keeping alive the coercive steps ordered to secure the presence of the other accused (A1) issuing a non-bailable warrant against her. She surrendered before the Magistrate on 16.08.2012 and,