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IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
Moosa Pattupara S/o. Pokker – Appellant
Versus
State Of Kerala – Respondent
Crl.MC No. 6140 of 2021
Decided on : 17-02-2022
Indian Penal Code,1860 - Sections 376 - Criminal Procedure Code,1973 – Section 317 and 205 - Passports Act, 1967 – Offence of Rape - Seek permission - Petitioner submitted that petitioner is in possession of a valid passport and necessary travel document to leave India and, as such, there is no requirement to seek permission under provisions of Passports Act - Learned counsel further submitted that Annexure A1 affidavit would show that petitioner has undertaken that he will not dispute his identity and further he has executed in favour of his counsel to conduct case on his behalf - Counsel also submitted that petitioner is prepared to appear at court below as and when required - Court below ought to have allowed application filed u/s 317 of Cr.P.C., submitted counsel.
Finding of the Court:
Issuance of passport and rules regulating departure of citizens of India to places outside country - Petitioner is employed at Riyadh, Saudi Arabia as a security watchman- He took leave and came to native place only to make appearance in above case - But due to Covid1-19 restriction he could not go back - In Annexure A1 affidavit, he has specifically stated that he is sole bread winner of his family and unless he goes back to Saudi Arabia, he would lose his job - He clearly undertook in the affidavit that he has absolutely no objection in proceeding with trial in his absence and he has also stated that will be appearing for him at Court - He has also undertaken that he will not dispute his identity - In these circumstances, Court below ought to have allowed his application seeking exemption from personal attendance.
Result : Crl.M.C is disposed of
ORDER :
Should an accused in a pending criminal case seek permission from the Court concerned for visiting a foreign country in terms of the Notification GSR 570(E) dated 25/8/1993 r/w S.6(2)(f) of the Passports Act, 1967 even if he holds a valid passport? -is the question falls for consideration in this Criminal Miscellaneous Case.
2. The petitioner is the sole accused in SC No.826/2017 on the file of the Fast Track Special Court, Manjeri (for short, the 'Court below'). The offences alleged against him are under Sections 376 of IPC and 31(1) of the Protection of Women from Domestic Violence Act, 2005. The petitioner appeared at the court below and was released on bail. Later on, he filed an application (Crl.MP No.405/2021) invoking S.317 of Cr.P.C (Section was wrongly quoted as S.205 of Cr.P.C.) to dispense with his personal attendance and to conduct the trial in his absence. The reason shown was that he was employed abroad and he wanted to go back to rejoin his employment. The application was dismissed by the Court below as per the impugned order holding that the petitioner has to file an application under the provisions of the Passports Act seeking permission to depart from India. The said order is under challenge in this Crl.M.C.
3. I have heard Sri.Thareeq Anver, the learned counsel for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor.
4. The learned counsel for the petitioner Sri.Thareeq Anver submitted that the petitioner is in possession of a valid passport and necessary travel document to leave India and, as such, there is no requirement to seek permission under the provisions of the Passports Act. The learned counsel further submitted that Annexure A1 affidavit would show that the petitioner has undertaken that he will not dispute his identity and further he has executed vakalath in favour of his counsel to conduct case on his behalf. The counsel also submitted that the petitioner is prepared to appear at the court below as and when required. The Court below ought to have allowed the application filed u/s 317 of Cr.P.C., submitted the counsel.
5. The Passports Act, 1967 (for short “the Act”) deals with the issuance of passport and rules regulating the departure of citizens of India to places outside the country. S.3 of the Act says that no person shall depart from India, unless he holds a valid passport or travel document. The terms 'passport' and 'travel document' have been defined in the Explanation to S.3. S.4 deals with classes of passports and travel documents. An application for obtaining a passport or travel document has to be submitted u/s 5 of the Act. S.6 deals with the refusal of passport, travel document etc. S.6 reads thus:
(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of subsection (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:—
(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;
(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;
(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;
(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.
(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:—
(a) that the applicant is not a citizen of India;
(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sov
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