IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY,THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938
Crl.MC.No. 6472 of 2013
CC 783/2012 of J.M.F.C.-I,ATTINGAL
CRIME NO. 1213/2011 OF ATTINGAL POLICE STATION , THIRUVANANDAPURAM
SHERIN JAMALUDEEN KUNJU
MANALUVETTATHU VEEDU, THEVELAKKARA, KOLLAM.
BY DR.S.GOPAKUMARAN NAIR (SR.)
RESPONDENTS/STATE AND THE IMPOUNDING OFFICER:
1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
2. REGIONAL PASSPORT OFFICER
REGIONAL PASSPORT OFFICER, SNSM BUILDING, KARALKADA JUNCTION,
BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
BY PUBLIC PROSECUTOR SMT.MAYA M.N.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLYHEARD ON 22-02-2017, THE
COURT ON THE SAME DAYPASSED THE FOLLOWING:
Crl.MC.No. 6472 of 2013 ()
ANNEXURE-A1: CERTIFIED COPY OF THE FIR IN CRIME NO.1213 OF 2011 OF ATTINGAL POLICE STATION.
ANNEXURE-A2: TRUE COPY OF THE FINAL REPORT IN C.C.NO.783/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL.
ANNEXURE-A3: TRUE COPY OF THE PASSPORT NO.E6 174977.
ANNEXURE-A4: TRUE COPY OF THE PASSPORT NO.L3880818.
ANNEXURE-A5: TRUE COPY OF THE VISA.
ANNEXURE-A6: TRUE COPY OF THE ORDER DATED4.11.2013.
ANNEXURE-A7: TRUE COPY OF THE ORDER OF JFMC-I, ATTINGAL DATED25.11.2013.
P.S to Judge
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Dated : 22nd February, 2017
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1.The question is this : Can the High Court under Sec.482 of
the Cr.P.C quash an order issued by the Regional Passport
2.The second respondent is the Regional Passport Officer,
Thiruvananthapuram. His order impounding the petitioner’s
passport is annex-A6. The same is sought to be quashed.
The relief is sought under Sec.482 of the Cr.P.C.
3.The facts are simple and admitted. Petitioner is the 1st
accused in C.C.783/2012 which is pending before the Judicial
Magistrate-I, First Class, Attingal. The petitioner and seven
others were charged under Sec.498A of the IPC read with
IPC 34. His former wife was the first informant. The
petitioner works in UAE. He holds an Indian passport. His
passport was impounded by the second respondent.
Pendency of the above criminal case is the reason stated in
annex-A6 order to impound the passport. This order is
sought to be quashed.
4.Heard the learned counsel for the petitioner and the learned
Assistant Solicitor General of India. Heard the learned Public
5.Section 482 Cr.P.C reads thus :
Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such
orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the
process of any court or otherwise to secure the ends
6.Section 482 saves the inherent powers of the High Court to
make such orders as may be necessary to give effect to any
order under Cr.P.C. This part of the section has no
application in the instant case. The Crl.M.C is filed not to get
any order under the Cr.P.C given effect to. Annex-A6 is not
an order passed under any of the provisions of the Cr.P.C.
7.The High Court may under Sec.482 pass any order to
prevent abuse of the process of any court. This part of the
section too has no application here. Annex-A6 is an
executive order. It cannot be said that such an order, if not
quashed, would amount to abuse of the process of any
8.The words “or otherwise to secure the ends of justice”
appearing at the end of Sec.482 cannot be interpreted to
mean that the High Court can thereunder interfere with any
order passed by any authority. Those words should be read
ejusdem generis with the words preceding those words. The
learned Assistant Solicitor General has drawn my attention
to the preamble of Cr.P.C. It reads “an Act to consolidate
and amend the law relating to criminal procedure”. Annex-
A6 order has nothing to do with the criminal procedure.
Inherent powers are saved, and not granted, under Sec.482
of Cr.P.C. The inherent powers do not extend to interfere
with an executive order like annex-A6. Such an executive
order is quite outside the purview of the Cr.P.C.
9.According to the learned counsel for the petitioner, Sec.482
Cr.P.C is attracted since annex-A6 order was passed in view
of the pendency of a criminal case in which the petitioner is
an accused. The argument is not acceptable. The order
impugned must be one made in a criminal proceedings to
attract Sec.482. The inherent powers can be exercised only
in relation to judicial matters pending in any court or which
may ultimately reach a criminal court. The power cannot be
exercised to interfere with an order passed by an executive
10.A division bench of the Madras High Court has gone deep
into the question. The decision is K.Rajamanickam v.
State of Tamil Nadu (2015 (3) Mad.Weekly Notes (Crl)
379). The precise question considered was whether a High
Court under Sec.482 Cr.P.C could interfere with an order of
an appropriate government passed under Sec.432 of the
Cr.P.C. The Madras High Court concluded that although the
power of the appropriate government to suspend or remit
sentences flows from Sec.432 Cr.P.C an order passed
thereunder, being in exercise of the executive power,
cannot be interfered with under Sec.482 Cr.P.C. I place
reliance on the said decision.
11.The petitioner is not entitled to any relief under Sec.482 of
the Cr.P.C. The learned counsel for the petitioner requests to
convert the present proceedings into one under Article 226
of the Constitution of India. The learned counsel cited the
decision in M/s.Pepsi Foods Ltd. v. Special Judicial
Magistrate (AIR 1998 SC 128). The Supreme Court said :
“Nomenclature under which petition is filed is not
quite relevant and that does not debar the court from
exercising its jurisdiction which otherwise it
possesses, unless there is special procedure
prescribed which procedure is mandatory. If in a case
like the present one the court finds that the
appellants could not invoke its jurisdiction under
Art.226, the court can certainly treat the petition one
under Art.227 or S.482 of the Code”.
This Court therefore has the power to convert this
proceedings into one under Article 226 of the Constitution.
But there must be sufficient reasons to convert this
proceedings into another proceedings. The learned counsel
requests me to convert the Crl.M.C into a writ petition under
Article 226. The submission of the learned counsel compels
me to go into the merits of the case and other attending
12.Annex-A6 is an order passed under Sec.10(3)(e) of the
Passports Act, 1967. Thereunder, the passport authority
may impound or cause to be impounded or revoke a
passport if proceedings in respect of an offence alleged to
have been committed by the holder of the passport is
pending before a criminal court in India. Admittedly a
criminal case against the petitioner charging him under
Sec.498A of the IPC is pending. The authority who passed
annex-A6 order had the authority to pass it. Annex-A6 is
thus not an order made without jurisdiction or without a
ground. Interference with such an order can be had only in
an extreme case.
13.Annex-A6 is an appealable order. Sec.11 of the Passports
Act provides for appeal against an order made under Sec.10
(3). The learned counsel for the petitioner submits that the
availability of an alternative remedy is no ground to deny
his client the relief sought for. According to the learned
Assistant Solicitor General, this Court should be slow in
interfering with an order if an alternative remedy is
available. The decision in Punjab State Warehousing
Corporation, Faridkot v. Sh.Durga Ji Traders (AIR
2012 SC 700) has been relied on by the learned counsel for
the petitioner. The learned Assistant Solicitor General relies
on the decision in Padal Venkata Rama Reddy @ Ramu
v. Kovvuri Satyanarayana Reddy ((2011 (12) SCC
437). The provision considered by the Supreme Court in
both the decisions is Sec.482 Cr.P.C. In Padal Venkata
Rama Reddy’s case (supra) the Supreme Court has said
that it is well settled that the inherent powers under Sec.482
can be exercised only when no other remedy is available to
the litigant and not in a situation where a specific remedy is
provided by the statute. It is also held that if an effective
alternative remedy is available, the High Court will not
exercise its powers under Sec.482, specially when the
applicant may not have availed of that remedy. The Apex
Court said in Punjab State Warehousing Corporation’s
case (supra) that availability of an alternative remedy of
filing an appeal is not an absolute bar in entertaining a
petition under Sec.482 of the Cr.P.C. That was an extreme
case where the magistrate dismissed a complaint on a
hyper technical ground. Therefore the Supreme Court said
that as there was miscarriage of justice, availability of an
alternative remedy was not an absolute bar in entertaining a
petition under Sec.482 Cr.P.C. Again the question is whether
this is such an extreme case.
14.The petitioner was not unaware of his remedy of appeal.
Annex-A6 order itself informed him about his right to appeal
against it. The last paragraph of annex-A6 reads thus :
“In case you wish to represent against the above
decision, you may make an appeal to the Chief
Passport Officer, Ministry of External Affairs. Patiala
House, Tilak Marg, New Delhi 110001 accompanied
by a fee of Rs.25/- which has to be pad in cash at
this office counter or at the State Bank of India,
under the head of Account “065 other
administrative service other receipts” and the
receipted challan should be enclosed with the
Annex-A6 thus not only informs the petitioner of his right to
appeal against it, but also who the appellate authority is,
the manner in which the appeal should be filed and the fees
thereof. Despite such information given to the petitioner, he
did not choose to prefer an appeal, but chose to file the
present Crl.M.C. I therefore do not consider this to be a fit
case to interfere with annex-A6 order even under Article 226
of the Constitution.
15.The learned counsel for the petitioner argued that no
appeal would lie against annex-A6 order as it was not a
reasoned order. It is impossible to agree with the learned
counsel. Any order made under Sec.10(3) of the Passports
Act is appealable under Sec.11. The possibility of
interference in appeal is on the higher side if the order
appealed against is not a speaking order. The above noted
submission of the learned counsel compels me to believe
that the petitioner purposefully avoided the statutory
16.The learned counsel next contended that annex-A6 order
was passed without issuing a show cause notice to the
petitioner and without holding an inquiry. It seems that
there is merit in the said contention. But that too can be
agitated in the appeal. I do not find any good reason for the
petitioner to avoid the statutory appeal.
17.Let me now conclude. An executive order made by a
statutory authority is not amenable to the jurisdiction of the
High Court under Sec.482 of the Cr.P.C. This is not a fit case
to convert into a writ petition under Article 226 of the
Constitution of India. Therefore there is no question of
directing the registry to convert it as a proceedings under
Article 226 and to post it before the appropriate bench as
per the roster.
18.The Crl.M.C fails, it being devoid of merit, and not even
maintainable. It deserves only a dismissal. Dismissed.
P.S to Judge