Mrs. Susie Rehmer vs State
2009 Latest Caselaw 5317 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI


+                              W.P. (Crl.) No. 1304/2009

               Judgment reserved on: 13.11.2009
               Judgment delivered on: 21.12.2009


Mrs. Susie Rehmer                        .....Petitioner
          Through: Ms. Geeta Luthra, Sr. Advocate with
                    Mr. Shivkant Arora, Advocate



                               Versus

State                                       ..... Respondent
                      Through: Mr. Vikas Pahwa, Advocate

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,


1.      Whether the Reporters of local papers may          Yes
        be allowed to see the judgment?

2.      To be referred to Reporter or not?                 Yes

3.      Whether the judgment should be reported            Yes
        in the Digest?


KAILASH GAMBHIR, J.

*

1. By this writ petition filed under Article 226 of the

Constitution of India read with section 482 of Code of Criminal

Procedure, 1973 the petitioner seeks quashing of the FIR No.

235/2008 dated 17.06.2008. The factual matrix of the case is as

follows:-

That on the night intervening 16/17 June, 2008 while going

to Germany, the petitioner approached the immigration counter

and upon scrutiny of various travel documents, it was informed

that one page of the passport being page no. 27 and 28 was

missing from the said passport and an FIR No. 235/2008 dated

17.06.2008 was registered at the Police Station I.G.I Airport,

under Section 12 of the Passport Act, 1967. The petitioner was

arrested and released on bail subsequently. Thereafter the

petitioner moved an application for no objection for the issuance

of a fresh passport which was given vide order dated 16.09.2008

by the learned ACMM subject to the condition that the same be

deposited in the court.

2. Ms. Geeta Luthra, counsel for the petitioner contended that

merely missing of a page would not attract Section 12(1) (b) of

the Passport Act as the case of the State is not that any specific

entries were manipulated or altered by the petitioner in the

passport. In support of her arguments counsel for the petitioner

has placed reliance on Schedule V of Clause 5 of The Passport

Act, 1967 and judgment of the Apex Court in Akmal Ahmed vs.

State of Delhi AIR 1999 SC 1315 and of Delhi High Court

reported in 134 (2006) DLT 700 in Balvinder Singh vs.

State. Counsel also submits that even otherwise such entry or

alteration has to be wilful which is not a case set up by the State.

Another contention raised by the counsel for the petitioner was

that the State cannot file a police report in a summon case

where the investigation is not completed within the statutory

period of six months. She submitted that the FIR in the present

case was registered on 16.6.2008 and till date the investigation

has not been completed. The contention of the counsel was that

it is the mandate of Section 167 (5) of the Code of Criminal

Procedure that the investigation in a summon case triable by a

Magistrate must be completed within a period of six months.

Counsel further submitted that if for any reason investigation in

such like case does not get completed then it is for the

prosecution to approach the Magistrate to seek extension of the

six months period which in the present case has not been done

by the State. In support of her argument counsel for the

petitioner has placed reliance on the judgment of High Court of

Madras in Azalea Veronica vs. State rep. By Inspector of

Police 2007 Cri LJ 3038. She further submitted that it can be

assumed that the investigation already stands completed in view

of the stand taken by the State in the Status Report. Counsel

further stated that even otherwise import of Section 167(5) of

Cr.P.C. is that any investigation done beyond the mandatory

period of six months cannot be looked into by the court. In

support of her arguments, counsel for the petitioner placed

reliance on the judgment of the Apex Court in State of

Karnataka vs. M.Raju 1995(1) RCR 38.

3. Mr. Vikas Phawa , Addl. Standing Counsel for the State on

the other hand submitted that Section 12(1)(b) of the Passport

Act, 1967 is attracted in the present case as the first part of

12(1)(b) where the attribute of knowledge has been made

essential will not extend to the second part of the section which

would get attracted once the alteration or attempt to alter or

cause to alter has been made by the passport holder without any

lawful authority. Counsel further submitted that under Section

17 of the Passport Act, passport has been made a property of the

Central Government and under Schedule V clause 5 the holder

of the passport or travel document is personally responsible for

its safe custody. Counsel thus submitted that in the present case

one leaf of the passport of the petitioner i.e. page Nos. 27 & 28

which was attached with the other leaf of the passport i.e. page

No. 9 & 10 was found missing by the office of the immigration

department which in the normal course could not have been

detached. Counsel further submitted that it is the obligation of

the passport holder to have apprised to the nearest passport

authority in India or to the nearest Indian Mission if the holder

of the passport is abroad in case of an unintentional loss or

destruction of passport as laid down in Clause 5 of Schedule V of

the Passport Rules, 1980. Mr Pahwa further stated that the

expression 'entry' has not been defined in the Passport Act and

once the page of the passport itself is missing that itself is

sufficient to attract Section 12(1)(b) of the Passport Act. He

stated that half of the passport carries passport number on the

top of every page and if the page of the passport is missing from

the passport then such entry on page of the passport with

passport no. itself would go and that would mean that particular

entry from the passport is missing. He further submitted that in

many other cases the State has found that such blank page is

found to have been misused by many criminals to take

advantage to travel abroad based on visas obtained on such

missing pages of the passport.

4. So far as section 167(5) is concerned, Mr. Pahwa

submitted that if the investigation in a summons case is not

completed for any reason then it is for the Magistrate to pass an

order to stop further investigation into the offence and no such

order has yet been passed by the Magistrate in the present case.

Counsel further submitted that under Section 167(5) of the Code

of Criminal Procedure the Magistrate after recording special

reasons if any advanced by the investigating officer can permit

the continuation of the investigation even beyond the period of

six months. Counsel further argued that even if there is any

delay in the investigation and delay in filing of the Challan the

same shall merely constitute an irregularity which cannot vitiate

the proceedings as would be manifest from Section 460(e) of the

Code of Criminal Procedure. Counsel further submitted that

under the Passport Act, 1967 the State is required to obtain a

previous sanction of the Central Government before launching

the prosecution and therefore the delay in conducting the

investigation and filing of the Challan invariably takes place

where such sanction of the concerned authority is required.

Counsel for the respondent further submitted that Section 12 of

the Passport Act is a continuing offence and therefore, under

Section 472 of the Code of Criminal Procedure a fresh period of

limitation began to run at every moment of such continuing

offence. He further submitted that in the given facts of the

present case the investigation would certainly continue even

beyond the mandatory period of six months and there would be

no illegality in carrying out such investigation. In support of his

arguments, counsel for the respondent placed reliance on the

judgment of the Apex court in State of West Bengal vs.

Falguni Dutta & Anr (1993)3 SCC 288 and State of West

Bengal vs. Nirmal Kanti Roy(1998)4 SCC 590 and of this

court in Court On Its Own Motion vs. State And Jai

Bhagwan 28(1985) DLT 77.

5. Refuting the said submissions of Mr. Pahwa, Ms. Geeta,

counsel for the petitioner submitted that the contentions raised

by the counsel for the State are just contrary to the stand taken

by the State in the Status Report. She also submitted that the

language of Section 12(1)(b) itself would show that alteration in

the entry by the passport holder has to be with full knowledge

and intention.

6. I have heard learned counsel for the parties at

considerable length.

7. The question whether the State has a right to continue with

the investigation beyond a period of six months in any case

triable by the Magistrate as a summons case, cannot be gone

into by this court at this stage when admittedly the State has yet

to file the Challan. It would be thus for the concerned

Magistrate to feel satisfied or not whether there was any

justification for the continuation of investigation if any took

place in the present case beyond the period of six months as has

been prescribed in Section 167(5) of the Code of Criminal

Procedure . Moreover it is also not in dispute that under The

Passport Act 1967, the State is required to obtain a previous

sanction of the Central Government before launching the

prosecution against any accused person and therefore some

delay is bound to take place in all those cases wherever the

sanction is a pre-requisite before launching the prosecution. In

Santimony Chatterjee vs. State of West Bengal and others

2000 Crl LJ 2406, the Court after placing reliance on the

judgment of the Supreme Court in the case of Durgesh

Chandra Shah vs. B.C. Saha 1996 Cri LJ 1137 has gone to

the extent of holding that the provisions of Section 167(5) cannot

be made applicable where after the completion of the

investigation the final report by the police is not submitted due

to the technical reason of awaiting the sanction from the

Government.

8. The judgment of the Apex Court in the case of State of

Karnataka vs. M. Raju (supra) as referred by the counsel for

the petitioner in no manner supports the case of the petitioner

as there the Apex Court took a view that there is nothing in sub

section 5 of Section 167 of Cr.P.C. to suggest that if the

investigation has not been completed within the period allowed

by that sub section, the officer in charge of the police station

would be absolved from the responsibility of filing the police

report under Section 173(2) of the Code. The Apex Court further

held that the criminal cases which come within the ambit of sub-

section 5 of Section 167 of Cr.P.C. cannot be permitted to die

down in police stations but have to meet their fate in criminal

courts one way or the other. The Apex Court also took a view

that the Special Court was competent to entertain the police

report restricted to six months investigation and take cognizance

on the basis thereof.

9. As already discussed above since in the present case the

State has yet to file the police report under Section 173(2)

Cr.P.C., therefore, it is left to the judicial discretion of the

learned Magistrate to take a final view in the matter whether to

entertain the police report restricted to 6 months investigation

or beyond the said period after taking into consideration the

aspect of time period consumed by the State in seeking prior

permission for launching the prosecution in conformity with the

requirement of Section 15 of the Passport Act and also the legal

position explained and enunciated by the Apex Court on the

above issue in its various decisions.

10. As regards to section 12 of the Passport Act, it deals with

offences and penalties. It would be pertinent to reproduce the

same as below:

"Offences and penalties.

12. Offences and penalties. (1) Whoever--

(a) contravenes the provisions of section 3; or

(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under

this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or

(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or

(d) knowingly uses a passport or travel document issued to another person; or

(e) knowingly allows another person to use a passport or travel document issued to him, shall be punishable with imprisonment for a term which may extend to 1*[two years or with fine which may extend to five thousand rupees] or with both.

1*[(1A) Whoever, not being a citizen of India,-

(a) makes an application for a passport or obtains a passport by suppressing information about his nationality, or

(b) holds a forged passport or any travel document, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees.] (2) Whoever abets any offence punishable under 1*[Sub-section (1) or sub-section (1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence. (3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.

(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence."

11. Rule 19 of the Passports Rules, 1980 which relates to the

conditions of a passport or travel document reads as under:

"The conditions of a passport or travel document:

The conditions subject to which a passport or travel document shall be issued or renewed shall be as set out in Schedule V."

12. Rules 5 and 6 to the Schedule V relate to loss, damage or

destruction of a passport or travel document which may be

relevant for the present purpose and are accordingly reproduced

hereunder:

"5. The holder of a passport or travel document is personally responsible for its safe custody. It must not be willfully lost, damaged or destroyed. In case of an unintentional loss or destruction, the fact and circumstances of such loss or destruction should be immediately reported to the nearest passport authority in India or (if the holder of the passport is abroad) to the nearest Indian Mission or Post and to the local police.

6. A passport or travel document must not be altered or mutilated in any way nor any endorsement made in it by any person other than a duly authorized official."

13. Dealing with the contention of counsel for the petitioner

that the missing of a leaf from the passport of the petitioner is

neither a wilful nor intentional act on the part of the petitioner

which can lead to her prosecution under Section 12(1)(b) of the

Passport Act read with Rule 5 of Schedule V of the Passport

Rules, I would refrain to express any view in the matter as this is

not the stage for the High Court to interfere when even the

challan/police report has not yet been filed by the State.

Undoubtedly the High Court has very wide powers under

Section 482 Cr.P.C. but as per the settled legal position this

power has to be exercised by the High Court with great caution,

care and circumspection. In Sanapareddy Maheedhar & Anr

vs. State of Andhra Pradesh & Anr 2008Cri LJ1375 the Apex

Court has held that the High Court should be extremely cautious

and slow to interfere with the investigation and/or trial of

criminal cases and should not stall the investigation and/or

prosecution except when it is convinced beyond any manner of

doubt that the FIR does not disclose commission of any offence.

It was observed that:-

"In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing the FIR or complaint or restraining the competent authority from investigating the allegations contained in the FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in the FIR or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the

complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C."

14. In State of Haryana vs. Bhajan Lal 1992 CriLJ 527 the

Apex Court considered the scope of the powers of the High

Court under Section 482 Cr.P.C. and under Article 226 of the

Constitution of India and laid down the following illustrative

guidelines in which the FIR or complaint can be quashed, which

are reproduced as under:-

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code

or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

15. Indisputably where a case of the petitioner falls in any of

the aforesaid parameters laid down by the Apex Court or

wherever the Court finds that the complaint or FIR lodged by the

complainant is a gross abuse of the process of the Court or is

tainted with malafide and ulterior designs then no fetters can

come in the way of the High Court to exercise its inherent

powers as envisaged under Section 482 Cr.P.C. to direct

quashing of such an FIR or complaint but it would be improper

for the High Court to enter into a detailed enquiry to analyze the

case of the complainant and then to determine whether a

conviction would be sustainable or not and then to arrive at a

conclusion to quash the proceedings. Such a course if taken by

the Court would even stifle legitimate prosecution at a stage

where the State may be in the process of collecting the material

before finally filing a police report under Section 173(2) Cr.P.C.

Although it is difficult to lay down any hard and fast rule as the

facts of each case would govern the exercise of the said

extraordinary power by the High Court under Section 482

Cr.P.C. but certainly so far as the facts of the present case are

concerned when the State has yet to file a police report under

Section 173 Cr.P.C. the quashing of the FIR at this premature

stage would amount to stifling and closing the said prosecution.

The judgment in the case of Balwinder Singh vs. State

134(2006) DLT 700 cited by the counsel for the petitioner

would be of no help to the petitioner as in the said case the

Court came to the conclusion that affixing of blank paper on the

existing leaf of passport under no circumstances be treated as

altering or attempting to alter the entries made in the passport

as in the present case one leaf of the passport itself is missing

and it will be for the prosecution to either bring out the case

under Section 12(1)(b) or may be under Section 12(3) of the

Passport Act.

16. Hence in the light of the above discussion and the pleas

and contentions raised by the respective counsel for the parties,

this petition is hereby dismissed. However, as the petitioner is a

frequent traveler to Germany it is hereby directed to the Trial

Court to release the passport subject to the condition that the

petitioner shall furnish an undertaking before the Trial Court by

way of an affidavit that she shall make herself available for the

trial of the said case in the event of the filing of a charge sheet

by the police against her and shall also furnish surety in the

sum of Rs. 50,000 to the satisfaction of the concerned

Magistrate.

17. Hence the writ petition stands disposed accordingly.

December       21, 2009                    KAILASH GAMBHIR,J