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Saurav Kalia vs State Of Punjab And Anr on 15 October, 2019

CRM-M-31265 of 2019 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M-31265 of 2019
Date of Decision: 15.10.2019

Saurav Kalia
…Petitioner

versus
State of Punjab
…Respondents

CORAM: HON’BLE MR. JUSTICE AMOL RATTAN SINGH

Present:- Mr. Ramesh Sharma, Advocate
for the petitioner.

Amol Rattan Singh, J.

By this petition, the petitioner seeks quashing of FIR no.268

dated 02.09.2016, registered at Police Station Navi Baradari, District Jalandhar

City, alleging therein the commission of an offence punishable under Section

12 (1) (b) of The Passports Act, 1967 (hereinafter to be referred to as the Act).

He also seeks quashing of the subsequent proceedings arising

from the report submitted to the Magistrate under Section 173 of the Cr.P.C.,

on 24.07.2017, as also the order passed by the learned Judicial Magistrate Ist

Class, Jalandhar, dated 26.02.2019 (copy Annexure P-5).

The allegation in the FIR (copy Annexure P-1), registered at the

instance of respondent no.2 herein, is that the petitioners’ passport, bearing

no.3101293, had been got issued by concealing facts from the Regional

Passport Authority, Chandigarh.

The complainant is the wife of the petitioner.

As per the complainant, her marriage was solemnized with the

petitioner at Ludhiana on 28.11.2011, as per Hindu rites, after which they lived

and cohabited together at Jalandhar, but with no child born of the said

marriage.

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The FIR further contains allegations of mis-treatment of the

complainant at the hands of the petitioner and his family, in respect of which

another FIR was lodged, alleging therein the commission of offences

punishable under Sections 406/498-A of the IPC, with it also stated that the

petitioner had earlier instituted a petition under Section 9 of the Hindu

Marriage Act, 1955, allegedly giving therein the wrong address of the

complainant, to try and obtain an ex parte decree against her, which petition

was however subsequently withdrawn, and instead a petition under Section 13

of the said Act was instituted by him.

Further allegations have also been made in the ‘present FIR’, with

regard to the ill-treatment meted out to respondent no.2 by the petitioner and

his family.

2. As regards the main allegation in the FIR in question presently, it

is stated that the petitioner had applied for a passport by furnishing false

information and had been granted such passport on 07.09.2015, valid upto

06.09.2025, and had in fact visited foreign countries many a time on the

strength of that passport, the concealment in his application form being that he

had not disclosed that he was married to the complainant, and had deliberately

not added her name in the application, thereby showing himself to be a

bachelor.

Hence, as per respondent no.2, the provisions of the Passport Act,

1967 had been violated, and a criminal case therefore was required to be

registered against the petitioner.

3. Upon the matter having been investigated by the police, a report

under Section 173 of the Cr.P.C. came to be filed before the competent court,

stating therein that as per written information received from the office of the

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Regional Passport Office, Jalandhar, the passport presently held by the

petitioner was issued from that office, “against his old passport no.F-7522329

dated 09.05.2006”.

The said report (copy Annexure P-2) further states that upon the

matter having been investigated from all respects, it was found that the

petitioner had actually concealed the factum of his marriage to the

complainant, i.e. respondent no.2, at the time that he had sought renewal of his

old passport and consequently, an offence punishable under Section 12 (1) (b)

of the Act, was made out.

4. Upon the said report having been submitted, the learned Judicial

Magistrate Ist Class, Jalandhar, vide her order dated 02.12.2017, first noticed

the provision contained in Section 15 of the Act, to the effect that no

prosecution shall be instituted against any person in respect of any offence

punishable under the Act without the previous sanction of the Central

Government or other authority as may be so authorised, with the contention of

the counsel for the petitioner before that court being that no sanction having

been obtained, cognizance under the said offence could not be taken.

However, as the learned Assistant Public Prosecutor appearing for

the State before that court had also prayed for framing of charges under

Section 177 and 420 of the IPC, as regards Section 177 it was held by the

learned Magistrate that as the case had not been instituted on a complaint filed

by the Passport Officer (i.e. the public servant concerned in terms of Section

177 of the IPC), cognizance could not be taken of that offence by the court, in

view of the provisions of Section 195 of the Code of Criminal Procedure,

1973.

Similarly, no averment having been made with regard to any

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deception by the petition as regards delivering any property of a valuable

security, even a charge under Section 420 of the IPC was not made out.

However, as per the learned Magistrate, in view of the fact that

the petitioner had concealed the factum of his marriage in his application form

and had induced the Passport Officer to issue him a passport bearing the entry

“single” (as regards his marital status), therefore an offence punishable under

Section 417 of the IPC was made out, as it still amounted to cheating.

Consequently, holding that even though no sanction had been

obtained as regards the cognizance of an offence punishable under Section 12

of the Act, since “the ingredients of Section 417” of the IPC were also made

out, the petitioner was liable to be charged accordingly.

5. That order having been challenged by the petitioner before the

learned Additional Sessions Judge, Jalandhar, that court, vide an order passed

on 14.08.2018 (copy Annexure P4), eventually held that the Act being a

special law, with Section 5 of the IPC specifically providing that provisions of

the said Code were not to affect the provisions of any special or local law, the

trial court could not have taken cognizance of the offence punishable under

the Act.

Consequently, the order passed by the trial court on 02.12.2017

was set aside and the revision was disposed of by the learned Additional

Sessions Judge, with a direction to the trial court to reconsider the matter and

to pass an order afresh.

6. Thereafter, the impugned order dated 26.02.2019 (Annexure P5),

came to be passed, which reads as follows:-

“Present: Ld. APP for the State.
Accused on bail with counsel.
Today the case was fixed for consideration on

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charge. Application for adjournment of case as complainant has
moved application for seeking permission from Govt. Authority in
this case filed, which is allowed. On request, case stands
adjourned to 29.03.2019 for consideration on charge.”

7. Before this court, the sole argument of Mr. Sharma, learned

counsel for the petitioner, is to the effect that as has been already held by the

learned Additional Sessions Judge, since no cognizance could be taken at all of

the case without sanction of the competent Government/authority, the

proceedings, starting with the registration of the FIR, and the investigation

subsequently carried out, are also completely without jurisdiction, and

therefore the FIR itself, alongwith the report submitted under Section 173 (2)

of the Cr.P.C., needs to be quashed, with, obviously, the subsequent

proceedings before the trial court thereby becoming non-est.

At that stage, in its order dated 24.07.2019, this court had referred

to clause (b) of sub-section (3) of Section 10, of the Act, with learned counsel

also having pointed to Section 15 thereof, which read as follows:-

Section 10:-

“Variation, impounding and revocation of passports and
travel documents.

xxx xxx xxx
(3) The passport authority may impound or cause to be

impounded or revoke a passport or travel document,-

xxx xxx xxx
(b) if the passport or travel document was obtained by

the suppression of material information or on the basis of wrong
information provided by the holder of the passport or travel
document or any other person on his behalf:

[Provided that if the holder of such passport obtains another
passport, the passport authority shall also impound or cause to be
impounded or revoke such other passport.]”

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xxx xxx xxx

“Section 15:-

Previous sanction of Central Government necessary.-No
prosecution shall be instituted against any person in respect of any
offence under this Act without the previous sanction of the
Central Government or such officer or authority as may be
authorised by that Government by order in writing in this behalf.”

8. The matter had been adjourned at that stage, for learned counsel

to address arguments as to how the impugned order, Annexure P-5, suffers

from any illegality, with him to also cite any judgment in his favour, in that

context.

Eventually, with learned counsel not having referred to any

judgment, the ratio of the judgment of the Supreme Court in General Officer

Commanding, Rashtriya Rifles v. Central Bureau of Investigation and

another (2012) 6 SCC 228 had been put to him, wherein it was held as

follows:-

28. “Prosecution” means a criminal action before a court of law
for the purpose of determining “guilt” or “innocence” of a person
charged with a crime. “Civil suit” refers to a civil action instituted
before a court of law for realisation of a right vested in a party by
law.

xxxxx xxxxx xxxxx

44. There is a marked distinction in the stage of investigation and
prosecution. The prosecution starts when the cognizance of
offence is taken. It is also to be kept in mind that the cognizance
is taken of the offence and not of the offender. The sanction of the
appropriate authority is necessary to protect a public servant from
unnecessary harassment or prosecution. Such a protection is
necessary as an assurance to an honest and sincere officer to
perform his public duty honestly and to the best of his ability. The
threat of prosecution demoralises the honest officer.

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xxxxx xxxxx xxxxx

63. In broad and literal sense "cognizance" means taking notice
of an offence as required under Section 190 Cr.P.C. "Cognizance"
indicates the point when the court first takes judicial notice of an
offence. The court not only applies its mind to the contents of the
complaint/police report, but also proceeds in the manner as
indicated in the subsequent provisions of Chapter XIV CrPC.
(Vide R.R. Chari v. State of U.P. And State of W.B. v. Mohd.
Khalid.)"

(All emphasis applied in this judgment only)

9. Hence, learned counsel had been asked to address arguments as to

how the FIR itself was not maintainable, because once prosecution has been

held to be a criminal action before a court of law, and there being a marked

distinction as regards the stage of investigation and prosecution, with

prosecution specifically having been held to be starting when cognizance of an

offence is taken in terms of Section 190 of the Cr.P.C., by a competent court,

obviously, investigation itself could not be held to be without jurisdiction.

10. Thereafter, on the next date of hearing, Mr. Sharma had firstly

submitted that the aforesaid judgment was strictly in the context of the

Prevention of Corruption Act, 1988 and the Army Act, 1950, and therefore

what has been held as regards the stage at which prosecution commences,

cannot be held to be applicable to the provisions of the Passports Act, 1967;

his contention therefore being that in the context of the Act, the police also

cannot register an FIR, and definitely cannot submit a report under Section 173

of the Cr.P.C., without sanction from the competent Government/ authority.

11. Having considered the matter, it is first to be noticed that in the

case of the General Officer Commanding, Rashtriya Rifles (supra), the

essential question before their Lordships was in the context of the Armed

Forces, JK (Special Powers) Act, 1990, as also of course the Army Act, 1950

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and the Code of Criminal Procedure (and not under the provisions of the

Prevention of Corruption Act, as has been contended by learned counsel for

the petitioner).

12. Be that as it may, after considering the entire law on the subject,

as regards the issue presently in question, i.e. as to whether prosecution would

be deemed to have begun at the stage of the registration of the FIR itself, or the

stage of investigation or the stage of filing of a report under Section 173 of the

Cr.P.C., as regards the question of what the term "prosecution" means, it was

held by the Supreme Court as follows:-

"28. "Prosecution" means a criminal action before a court of law
for the purpose of determining "guilt" or "innocence" of a person
charged with a crime. "Civil suit" refers to a civil action instituted
before a court of law for realisation of a right vested in a party by
law."

13. The Apex Court then went on to discuss the difference between

judicial proceedings and legal proceedings, holding that legal proceedings are

those that are regulated or prescribed by law, in which a judicial decision may

be given.

Eventually, after going on to discuss the case law on the issue and

specifically in the context of "sanction for prosecution", it was held that the

protection granted under Section 197 of the Code of Criminal Procedure (in

respect of prosecution of Judges and public servants), was meant to

protect public servants against the institution "of possibly vexatious criminal

proceedings".

14. Coming next to the difference between the stages of investigation

and prosecution, it was held as follows:-

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"44. There is a marked distinction in the stage of investigation
and prosecution. The prosecution starts when the cognizance of
offence is taken. It is also to be kept in mind that the cognizance is
taken of the offence and not of the offender. The sanction of the
appropriate authority is necessary to protect a public servant from
unnecessary harassment or prosecution. Such a protection is
necessary as an assurance to an honest and sincere officer to
perform his public duty honestly and to the best of his ability. The
threat of prosecution demoralises the honest officer."

(Emphasis applied in the present judgment only).

Very obviously, the context at that stage was only with regard to

sanction for prosecution in respect of a public servant. However, the issue on

sanction for prosecution, as also the stage of taking cognizance of offences is

concerned, has been discussed by their Lordships in the context of various

Acts, by citing judgments dealing with statutes including the UP Sales Tax

Act, 1948, U.P. Urban Buildings (Regulations of Letting, Rent and Eviction)

Act, 1972, the Delhi Police Act, as also the Cr. P.C. (in the context of Sections

190 and 193 thereof).

15. In a nutshell, though the emphasis of the entire judgment in the

case of General Officer Commanding (supra), is in the context of whether

sanction had been appropriately obtained or not/or was required to be obtained

or not, the stage of when prosecution starts, was a finding given by their

Lordships ejusdem generis, thereby holding that the stage of investigation and

stage of prosecution are clearly distinct from each other. [Reference paragraph

44 of that judgment (SCC citation) as has been reproduced hereinabove].

16. Though it has also been observed in that judgment that reference

must be had to a specific statute, as regards the stage at which previous

sanction of the competent authority (for taking cognizance of a matter), is to be

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taken, however, in the present context, nothing in the Passports Act, 1967, is

discerned, stipulating to the effect that prosecution would be deemed to start at

the stage of either registration of the FIR itself, the stage of investigation, or at

the stage of submitting a report under Section 173 of the Cr.P.C. to the

competent court.

Section 15 of the Act simply postulates that "no prosecution shall

be instituted against any person in respect of any offence under this Act,

without the previous sanction of the Central Government" (or any other

officer/authority authorized by it).

Thus, to repeat, with Section 15 stipulating as above and it having

been held, in General Officer Commandings' case, that prosecution starts when

cognizance of the offence is taken and that there is a difference between the

stages of investigation and prosecution, very obviously the contention of

learned counsel for the petitioner is misconceived.

17. Other than that, Sections 13 and 14 of the Act read as follows:-

"13. Power to arrest

(1) Any officer of customs empowered by a general or special
order of the Central Government in this behalf and any [officer of
police or emigration officer] not below the rank of a sub-inspector
may arrest without warrant any person against whom a reasonable
suspicion exists that he has committed any offence punishable
under section 12 and shall, as soon as may be, inform him of the
grounds for such arrest.

(2) Every officer making an arrest under this section shall,
without unnecessary delay, take or send the person arrested before
a magistrate having jurisdiction in the case or to the officer in
charge of the nearest police station and the provisions of [section
57 of the Code of Criminal Procedure, 1973 (2 of 1974)] shall, so
far as may be, apply in the case of any such arrest."

14. Power of search and seizure

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(1) Any officer of customs empowered by a general or special
order of the Central Government in this behalf and any [officer of
police or emigration officer] not below the rank of sub-inspector
may search any place and seize any passport or travel document
any offence punishable under Section 12.

(2) The provisions of the [Code of Criminal Procedure, 1973 (2
of 1974)] relating to searches and seizures shall, so far as may be,
apply to searches and seizures under this section."

Hence, offences punishable under the Act are obviously

cognizable offences, as a cognizable offence is defined in Section 2 (c) of the

Code of Criminal Procedure, 1973, to be one in which a police officer can

make an arrest without a warrant (in the context of either the 1st Schedule to

the said Code, or under any law in force).

Consequently, with offences punishable under the Act being

offences where a police officer/other authorised officer may arrest a person

even without a warrant issued in that regard, naturally no sanction of the

Government/authorised authority is required for initiating proceedings for such

offence alleged to have been committed, but with cognizance of the offence to

be taken by a court only after the Central Government/an 'authorised authority'

has actually granted sanction for prosecution.

18. That being so, in the opinion of this court, what learned counsel

for the petitioner has contended, that even an FIR cannot be registered and

investigation too cannot be conducted by the investigating agency without

seeking sanction of the Government, in terms of Section 15 of the Act, is an

argument which cannot be accepted.

Certainly, the learned Judicial Magistrate could not have taken

cognizance of any offence under the Act without the previous sanction of the

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Central Government/competent authority authorised in that behalf, even in

terms of the aforesaid provision, and therefore even though at the initial stage

that court had erroneously held that because an offence punishable under

Section 417 of the IPC also made out, no previous sanction was required, and

that order was rightly set aside by the learned revisional court, however

thereafter, on remand of the case, the impugned order having been passed

simply to await the sanction of the Central Government/competent authority,

on a request made by the prosecution, actual prosecution can naturally start

before the trial court only upon such sanction for prosecution being obtained.

19. Consequently, I find no infirmity in the order impugned before

this court, with the petition therefore dismissed.

Naturally, nothing stated hereinafore would be taken to be an

observation made on the merits of the case for or against the petitioner, which

would be subject matter of trial (if sanction for prosecution is granted by the

competent authority), with the trial to thereafter proceed wholly on the basis of

evidence led before the trial court.

October 15, 2019                                  (AMOL RATTAN SINGH)
dinesh JUDGE

1.Whether speaking/reasoned? Yes
2. Whether reportable? Yes

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