Kerala High Court
Sajena Salam vs Union Of India on 23 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
WP(C) NO. 19465 OF 2021
PETITIONER:
SAJENA SALAM
AGED 32 YEARS, D/O. ABDUL SALAM,
PUTHANKANDATHIL HOUSE,
CHINGOLI P.O, VANDIKAPPALLY,
ALAPPUZHA DISTRICT, PIN CODE - 690532.
BY ADVS.
SRI.ARUN CHANDRAN
SRI.HARIMOHAN
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF EXTERNAL AFFAIRS,
NEW DELHI, PIN CODE - 110001.
2 THE PASSPORT OFFICER
REGIONAL PASSPORT OFFICE,
PANAMPILLY NAGAR POST OFFICE, COCHIN,
ERNAKULAM DISTRICT, PIN CODE - 682036.
3 THE STATION HOUSE OFFICER
KAREELAKULANGARA POLICE STATION,
NANGIARKULANGARA,
ALAPPUZHA DISTRICT, PIN CODE - 690513.
BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA
ADV.JAISHANKAR V.NAIR, CGC
W.P.(C) No.19465/21 -:2:-
BY ADV.SABEENA P. ISMAIL, GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.19465/21 -:3:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.19465 of 2021
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Dated this the 23rd day of September, 2021
JUDGMENT
Petitioner challenges Ext.P3 and Ext.P9 show-cause notices
issued by the passport officer. A direction is also sought to issue
passport to the petitioner on the basis of the application submitted by
her without reference to the police verification report.
2. Petitioner is the holder of a passport bearing No.N3311354
which was issued on 07.10.2015 and is valid till 06.10.2025.
Petitioner claims to be a Dental Surgeon in Dubai and was living
there with her husband. According to the petitioner, during her stay
abroad, the relationship with her husband turned sour and she
returned to India along with her minor son in January, 2021. While
so, since her passport got tampered due to exposure to rain, she
applied for a reissue of her passport and changes in her personal
particulars in the passport by filing Ext.P2 application.
3. During the processing of the application for reissue of
passport, the 2nd respondent, received an adverse police verification
report stating that a crime as 233 of 2021 was pending against her
before the Kareelakulangara Police Station. Hence petitioner was
called upon as per Ext.P3 to provide an explanation for suppressing
the said material information. Petitioner replied through Ext.P4
stating that at the time of applying for re-issuance of passport,
petitioner had no knowledge about the alleged crime which is now
understood to be filed by her in-laws as a counterblast to the
complaint filed by the petitioner under section 498A of the IPC. On
the said basis, petitioner requested for release/issue of her passport.
Even thereafter, the 2nd respondent has issued Ext.P9 calling for
explanations from the petitioner stating that even on re-verification,
the crime is found to be pending investigation and that petitioner has
to give a proper explanation for suppressing the information.
Petitioner states that Ext.P9 is a verbatim reproduction of Ext.P3 and
is issued without considering the explanation offered by the petitioner
and also that in the meantime petitioner has received a job offer from
abroad, the call letter of which is produced as Ext.P10. It is in such
circumstances that petitioner was compelled to move this Court.
4. When the matter came up for admission on 17.09.2021, this
Court directed the learned Assistant Solicitor General of India to get
emergent instructions since the learned counsel for the petitioner had
submitted that the matter is extremely urgent. Thereafter when the
case came up on 20.09.2021, learned Assistant Solicitor General of
India sought a day's time and thus it came up on 22.09.2021.
5. I have heard Adv.Arun Chandran, learned counsel for the
petitioner, Adv.P.Vijayakumar, learned Assistant Solicitor General of
India for the 1st respondent, Adv.Jaishankar V.Nair, learned Central
Government Counsel for the 2nd respondent as well as Adv.Sabeena
P. Ismail, learned Government Pleader for the 3 rd respondent.
6. Learned counsel for the petitioner submitted that petitioner
has not suppressed any material information which was within her
knowledge at the time of applying for reissue of passport. It was also
submitted that even otherwise there are no criminal proceedings
pending against the petitioner to enable her to obtain permission
from the Magistrate's Court as contemplated in the decision in
Muhammed v. Union of India and Others (2018 (4) KHC 945). It is
further submitted that in any case, the attempt of petitioner's in-laws
by filing the complaint is only to harass her and that if the passport is
not issued to the petitioner, she will be falling prey to the evil desires
of her in-laws.
7. The learned Assistant Solicitor General of India on the other
hand submitted that Ext.P3 and Ext.P9 were issued seeking
clarifications since the police verification report mentions the
existence of Crime No.233 of 2021 before the Kareelakulangara
Police Station and that it was essential for the passport issuing
authority to verify as to whether the application was filed suppressing
the pendency of the criminal proceedings.
8. On an appreciation of the facts and circumstances arising in
the case, it is noted that an FIR was filed by the petitioner which is
produced as Ext.P6 under section 498(A), 323, read with section 34
of the IPC and under section 3(1) of the Protection of Women from
Domestic Violence Act, 2005. Petitioner has also produced Ext.P7
which is the F.I.R. dated 12.04.2021 filed by Abdul Asees, who is the
2nd accused in Ext.P6 F.I.R., alleging that the petitioner had verbally
abused the de facto complainant and his wife and also assaulted
them on 12.03.2021 thereby committing offences under sections 447,
452, 341, 323, 294(b), 506, 509 and 34 I.P.C. The said Abdul Asees
is the father-in-law of the petitioner. The case against the petitioner
is thus arising out of a matrimonial dispute.
9. A perusal of the dates in the two F.I.R. reveal that Ext.P7
F.I.R., which is in Crime No.233 of 2021 of the Kareelakulangara
Police Station, was filed almost a month after the alleged
occurrences on 12.03.2021 and further after the petitioner filed the
F.I.R. against her in-laws. It is clearly evident from Crime No.233 of
2021 of the Kareelakulangara Police Station that the said crime is
subsequent in point of time and the petitioner has not been arrested
nor has she been summoned by the police. In such circumstances,
there is no reason to assume that petitioner was aware of the
pendency of crime or even alleged to have suppressed material
information.
10. Further, this Court has held in Muhammed v. Union of
India and Others (2018 (4) KHC 945), that the word 'pending
criminal proceedings' does not include a mere registration of FIR so
as to attract section 6(2)(f) or section 10(3)(e) of the Passports Act,
1967. Relying upon the said decision in Muhammed's case, this
Court had again held in Jayan V.M. @ Jayasoorya v. Union of
India and Others (2018 KHC 823), that mere registration of crime
will not be sufficient to attract either section 6 or section 10 of the
Passports Act and since by registration of a crime, no case can be
regarded as pending in the criminal court, it does not amount to
suppression of a material fact. This Court had also held that
passport issuing authority must distinguish between serious crimes
and family disputes masquerading as criminal offences for infracting
the fundamental right to travel of one of the spouses in a matrimonial
dispute.
11. Viewed in the above manner, it is seen that no crime can
be said to be pending against the petitioner not only because the
petitioner asserts and affirms that she was not aware of the
registration of F.I.R. in Crime No.233 of 2021 before the
Kareelakulangara Police Station but also due to the position of law as
declared by this Court in Muhammed's Case (supra). Thus, it cannot
be said that petitioner had suppressed any material information
warranting even issuance of a show-cause notice to the petitioner.
This exercise of extraordinary jurisdiction is warranted in the case,
since, a direction to the 2nd respondent to merely consider petitioner's
explanation and pass appropriate orders would delay and deny
petitioner's right to travel abroad and seek employment, which is
evident by Ext.P10.
12. In such circumstances, I set aside Ext.P3 and Ext.P9 and
direct the passport issuing authority, the 2 nd respondent, to process
petitioner's application for re-issuance of a passport and issue the
same to the petitioner, as expeditiously as possible, disregarding the
existence of Crime No. 233 of 2021 of Kareelakulangara Police
Station, if there are no other legal interdiction in issuing the passport.
The passport shall be issued within a period of seven days from the
date of receipt of a copy of this judgment.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 19465/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF
PASSPORT BEARING NO. N. 3311354 ISSUED
TO THE PETITIONER BY THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED
BY THE PETITIONER DATED 23.08.2021.
EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE DATED
30.08.2021 BEARING NO. SCN/311159095/21.
EXHIBIT P4 TRUE COPY OF THE EXPLANATION SUBMITTED
BY THE PETITIONER DATED 02.09.2021.
EXHIBIT P5 TRUE COPY OF THE ORDER OF THE JFCM -I,
HARIPAD, DATED 17.02.2021 IN CMP NO.
524/2021.
EXHIBIT P6 TRUE COPY OF THE FIR BEARING NUMBER
0191/2021 DATED 15.03.2021.
EXHIBIT P7 TRUE COPY OF THE FIR IN CRIME NO.
0233/2021 DATED 12.04.2021.
EXHIBIT P8 TRUE COPY OF THE OUT-PATIENT TICKET
DATED 12.03.2021 ISSUED AT 12.31.16 PM.
EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE
BEARING NUMBER SCN/31198413/21DATED
13.09.2021.
EXHIBIT P10 TRUE COPY OF THE OFFER LETTER ISSUED TO
THE PETITIONER BY CARE FIRST MEDICAL
CENTRE, DUBAI, UNITED ARAB EMIRATES
DATED 14.09.2021.
