SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Cc 783/2012 Of J.M.F.C.-I vs By Dr.S.Gopakumaran Nair (Sr.) on 22 February, 2017

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

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

PETITIONER/1ST ACCUSED:

SHERIN JAMALUDEEN KUNJU
MANALUVETTATHU VEEDU, THEVELAKKARA, KOLLAM.

BY DR.S.GOPAKUMARAN NAIR (SR.)
SRI.A.RAJASIMHAN

RESPONDENTS/STATE AND THE IMPOUNDING OFFICER:

1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.

2. REGIONAL PASSPORT OFFICER
REGIONAL PASSPORT OFFICER, SNSM BUILDING, KARALKADA JUNCTION,
PETTAH.P.O., THIRUVANANTHAPURAM-695024.

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 ()

APPENDIX

ANNEXURES

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.

//True copy//

P.S to Judge

“CR”
A.M.BABU, J.
– – – – – – – – – – – – – – – – – – – –
Crl.M.C.6472/2013
– – – – – – – – – – – – – – – –
Dated : 22nd February, 2017
– – – – – – – – – – – – – – – – – – – – – – – –

ORDER

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

Officer ?

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

Crl.M.C.6472/13
2

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

Prosecutor too.

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
of justice.

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

Crl.M.C.6472/13
3

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

court.

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.

Crl.M.C.6472/13
4

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

authority.

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)

Crl.M.C.6472/13
5

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

Crl.M.C.6472/13
6

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

circumstances.

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

Crl.M.C.6472/13
7

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

Crl.M.C.6472/13
8

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

Crl.M.C.6472/13
9

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
appeal”.

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.

Crl.M.C.6472/13
10

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

appeal.

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.

Crl.M.C.6472/13
11

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.

Sd/-

A.M.BABU
Judge

Mrcs/20.2.2017
//True copy//

P.S to Judge

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation