Naveen Varghese vs The State Of Kerala
2021 Latest Caselaw 23313 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE K.HARIPAL
  THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                     CRL.MC NO. 4412 OF 2021
 CMP 1891/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,THIRUVALLA
   CRIME 62/2021 OF PERUMPETTY POLICE STATION, PATHANAMTHITTA


PETITIONER/1ST ACCUSED:

          NAVEEN VARGHESE
          AGED 31 YEARS
          S/O. VARGHESE, KURIYANPARAMBIL HOUSE, PUTHUR P. O.,
          THRISSUR DISTRICT.
          BY ADV M.J.SANTHOSH


RESPONDENTS/RESPONDENTWS:

    1     THE STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
          ERNAKULAM - 682 031.
    2     THE REGIONAL PASSPORT OFFICER
          SHIHAB THANGAL ROAD, NEAR IDBI CORPORATE BRANCH,
          PANAMPILLY NAGAR, ERNAKULAM - 682 036.
    3     THE STATION HOUSE OFFICER
          PERUMPETTY POLICE STATION, PATHANAMTHITTA DIST. -
          689645.


          PP - SRI. M.C.ASHI FOR R1 AND R3
          FOR R2 SRI. S. MANU, ASGI



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.11.2021, THE COURT ON 25.11.2021 PASSED THE FOLLOWING:
 Crl.M.C.4412/2021                         2


                                   O R D E R

Petitioner is the 1st accused in crime 62 of 2021 of Perumpetty police

station, Pathanamthitta district, where he, along with other accused persons

faces allegation under Section 379 read with 34 of IPC. The allegation is

that on 19.01.2021 at 1.30 a.m. he had committed theft of 19 buffalo calves

worth Rs.8,00,000/- from the farm house of the defacto complainant.

2. The petitioner claims that he is a diploma holder and holder of

a passport and is desirous of getting appointment as a care taker in an old-

age home in Israel. The visa processing agency, namely M/s.Travel Tech

Manpower Agency, demanded to produce police clearance certificate of the

petitioner. Accordingly, he approached the Judicial First Class Magistrate,

Thiruvalla, seeking a police clearance certificate. But the learned

Magistrate, by Annexure-A3 order, dismissed the application and

aggrieved by the same he has moved this Court under Section 482 of the

Criminal Procedure Code for quashing the Annexure-A3 order and to

direct the 2nd respondent to issue a police clearance certificate to the

petitioner, in the interest of justice.

3. I heard the learned counsel for the petitioner, the learned

Standing Counsel appearing for the 2nd respondent and also the learned

Public Prosecutor.

4. According to the learned counsel for the petitioner, the

petitioner is totally innocent; it was on account of some dispute with the

defacto complainant that such a case was foisted against him, that the other

accused persons are also on bail. Referring to Annexures-A5, A6 and

A7orders of this Court he submits that the petitioner is entitled to get a

police clearance certificate. Therefore, Annexure-A3 order is illegal and is

liable to be quashed.

5. It is a fact that the petitioner is the 1 st accused in crime No.62

of 2021 of Perumpetty police station, which is a crime registered alleging

offence under Section 379 read with 34 of the IPC. The petitioner was

arrested for the case and had been in judicial custody; later, by Annexure

A1 order, he was granted bail by this Court. It is evident from Annexure-

A4 order that other accused persons are also on bail. Annexure-A4 is an

order granting anticipatory bail to accused Nos.2 and 5 from where it is

evident that the other accused persons also have already been granted bail.

Therefore, the observation of the learned Magistrate in Annexure-A3, that

other accused persons have not been apprehended, is not correct.

Whatever it may be, the point arises for consideration is whether the

learned Magistrate is correct in rejecting the application.

6. A police clearance certificate, as the term indicates, has to be

issued by the police. So long as the crime is registered and pending

investigation, or so long as the final report is not filed exonerating the

petitioner, I do not think that police can possibly issue a clearance

certificate to the petitioner. All the same, what is important is permission

to grant him to go abroad during the pendency of the proceedings. For

granting such a permission, what is important is to get a clearance as

provided under Section 6(f) of the Passports Act. Granting a police

clearance certificate is within the domain of the police and so long as the

the proceedings are pending, they cannot issue such a certificate.

7. Then the question is whether permission can be granted to him,

pending the proceedings, to go abroad. He has already been issued a

passport and therefore the Court has to consider, whether his absence will

impede the further progress of the case.

8. Annexures-A5, A6 and A7 orders of this Court cannot help the

petitioner. Firstly, Annexure-A5 is a judgment in a writ petition, when the

petitioner approached this Court for issuing a police clearance certificate;

this Court relegated him to the learned Magistrate. Annexure-A6 is

another judgment in respect of police clearance certificate in the context of

Appendix-32 of the Passport Manual. That judgment also has no relevance

in this case. The Annexure-A7 order also turned up on different context

and it was rendered in a case pending for trial before the Court.

In my opinion, if the petitioner wants to get a clearance certificate

from the Court, pending the proceedings, he has to approach with a petition

under Section 6(2)(f) of the Passports Act. If such an application is filed, I

have no doubt that, after considering various aspects and the standing

instructions on the subject, the learned Magistrate shall pass necessary

orders. Leaving open the liberty, the Crl.M.C. is disposed of.

Sd/-

K.HARIPAL JUDGE okb/24.11 //True copy// P.S. to Judge

APPENDIX OF CRL.MC 4412/2021

PETITIONER ANNEXURE Annexure A1 TRUE COPY OF ORDER IN BAIL APPLICATION NO.2279/21 DATED 23.03.21.

Annexure A2 TRUE COPY OF DETAILS OF REQUIRED DOCUMENTS DEMANDED BY THE TRAVEL AGENCY.

Annexure A3 TRUE COPY OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA IN CMP NO.1891/2021 DATED 20.09.21.

Annexure A4 TRUE COPY OF ORDER IN BAIL APPLICATION NO.3166/21 DATED 28.06.21.

Annexure A5 TRUE COPY OF ORDER IN WP(C) NO.4160/2011 VINOD XAVIER VS. STATE OF KERALA.

Annexure A6 TRUE COPY OF ORDER IN WP(C) NO.25839/2016 DR.

SHAHUL HAMEED ABOOBACKER VS. REGIONAL PASSPORT OFFICER.

Annexure A7 TRUE COPY OF ORDER IN ARUN BABY VS. STATE OF KERALA IN CRL. M.C. NO.2695/2021.