Courts Must Be Liberal In Giving NOC For Issuance Of Passport When Applicant Is Accused Of Matrimonial/Trivial Offence: Kerala HC
The Kerala High Court has said that Courts have to be liberal while considering issuing a No Objection of Certificate for passports when the case pending against the applicant is a matrimonial issue or a trivial/ simple offence.
In doing so the court said that if a liberal approach is not adopted in such cases, the applicant's right to go abroad to carry out their employment, without obstructing the trial, "would be in peril".
Justice A. Badharudeen held that the Court has to uphold the right of life of the accused. In the case before it, the high court noted that it was the petitioner's grievance was that the pendency of a criminal case is a matter which would negate the issuance/re-issuance of passport, unless No Objection Certificate from the concerned Court is produced. It then said:
“Therefore, when an accused applies for No Objection Certificate in the matter of issuance/re-issuance of passport, the Court shall consider various aspects, viz., the seriousness of the offence/offences, the possibility of stalling trial by abscondence etc.When matrimonial dispute is the base where from the criminal case arose, the court shall be so liberal in the matter of issuance of No Objection Certificate, otherwise the right to go abroad, with the permission of the court to do some employment therein without obstructing the trial would be in peril. Similar is the principle to be followed while considering issuance of No Objection Certificate in cases involving trivial and simple offences.”
The Court held that in such cases, even if there is some omission in part of the accused, it should not be a hindrance for granting NOC, "to ensure the right to life of the accused".
It however said that in cases concerning murder, attempt to commit murder, rape, offences under the Protection of Children from Sexual Offences Act and Narcotic Drugs and Psychotropic Substances Act, while issuing No Objection Certificate, the court must ensure that on the strength of the passport, the accused would not abscond and stall the trial.
"In such cases, after imposing necessary conditions to secure the presence of the accused for trial, No Objection Certificate or Emergency Certificate in the case of persons, who are already abroad and their passport expired has to be considered favourably," the court underscored.
In the case before the high court, the Immigration Department had seized the passport of the petitioner saying that the petitioner obtained the passport suppressing the criminal case that was pending against him and is therefore facing prosecution under Section 12 of the Passports Act.
The petitioner is the second accused in the complaint filed by his brother's wife. She complained that her husband compelled her to co-operate with his brother for his sexual desires. She alleged that when she refused, her husband and husband's brother mentally and physically harassed her. Both the accused men are booked for various IPC offences including Sections 498A(cruelty), 354B(Assault or use of criminal force to woman with intent to disrobe), 376 (rape) r/w Section 34.
His application for NOC for obtaining the passport was rejected by the Sessions Court noting that he suppressed details about his pending criminal trial while applying for passport. Against this order, the petitioner approached High Court.
The petitioner submitted before the High Court that a miscommunication occurred between him and the passport agency as he only knew Mahl language. He submitted that there was no wilful omission from his part.
The petitioner said that he was working as a bosun and a passport is absolutely necessary for his job. The Court noted that the criminal case against the petitioner was pending for the last 5 years. The Court held that this is a fit case to grant NOC.
It directed the Regional Passport Office to consider the application of the petitioner for getting a passport afresh, if filed within one month and to consider issuance of a new passport and for which it issued 'No Objection Certificate' by setting aside the impugned order.
"At the same time, the petitioner is directed to co-operate with the investigation as proposed without stalling the same in any manner. The learned Special Judge is directed to expedite the trial and dispose of the same within a period of three months from the date of receipt of a copy of this order," the court said.
Case Title: Ismail Valumathige v Union Territory of Lakshadweep and Another
Counsel for the Petitioners: Advocates Lal K. Joseph, P. Muraleedharan, T. A. Luxy, Suresh Sukumar, Ajmal Ahmed R., Anzil Salim, Sanjay Sellen, Akash George
Counsel for the Respondents: Advocates R. V. Sreejith, Mini Gopinath
Case No: Crl.MC 9520 of 2024
Citation: 2024 LiveLaw (Ker) 777