'Non-Application Of Mind, Impounding Over A Private Complaint Without Any Rhyme Or Reason': Madras High Court On Impounding Of Leena Manimekalai's Passport

A single-judge bench of Justice M. Dhandapani ordered the Regional Passport Office, Chennai to release Manimekalai's Passport within one week on receipt of court order.

In the order, the court has elaborately explained the illegality of impounding the petitioner's passport and the non-application of mind by the regional passport officer so as to invoke Sections 10(3)(e) and Section 12 (1) (b) of the Passports Act. The court has also briefly mentioned the overzealousness of the passport authority in taking the extreme step of cancelling the passport citing a private complaint.

Observing that judicial discipline warrants the Court to refrain from dealing any further on the aspect, the court added the following in the order:

"Offences of criminal nature, which have far-reaching consequences and more penal in nature, which affects the society, wherein persons who have committed such heinous offences, being holders of passport, in such of those cases, seldom the passport authority, invoking its powers u/s 10 (3) (e) of the Act, impounds the passport of such of those individuals. Yet, for an offence, alleged to have been committed u/s 500 IPC and that too on a private complaint, the passport, without any rhyme or reason, after a lapse of four years from the date of issuance of the passport has taken the extreme step of cancelling the passport of the 1st party, which act does not augur well with this Court"

While upholding the personal liberty of the petitioner, the High Court has also set aside the Criminal Original Petition filed by Film Director Susi Ganesan against the Chennai Principal Sessions Court Order setting aside the passport impoundment order of Saidapet Metropolitan Magistrate.

Court's Observations

First of all, it was observed that the courts are not empowered to rely on Section 104 CrPC to pass an impoundment order of passport; there are numerous apex court judgments underscoring that enquiry and impounding order is in the exclusive domain of passport authorities. Therefore, Sessions Court setting aside the Saidapet Magistrate's erroneous passport impoundment order was right in law, the court concluded.

Moving on, the court examined the ambit of Sections 10(3)(e) and Section 12 (1) (b) of the Passports Act. Section 10(3)(e) allows a passport authority to impound if criminal proceedings are pending against the holder of the passport in India. Section 12(1) (b) mentions about the offence of suppressing information or furnishing false information to obtain a passport.

The court examined the applicability of these statutory provisions to the case at hand. The court noted that the application for passport renewal was made and thereafter it was issued in 2017. The private complaint by Susi Ganesan alleging criminal defamation was made in late 2018. Hnece, there weren't any violations of Section 10(3)(e) or 12 (1)(b) when the passport application was made by Manimekalai, the court recorded in the order.

"Further, it could safely be presumed that at the time of renewal of the passport, the passport authority would definitely have called for report from the law enforcing agency with regard to the 1st party and only after satisfying itself, the renewal of passport would have been processed. That being the case, invocation of Section 12 (1) (b) against the 1st party clearly shows total non-application of mind on the part of the respondent authority", the court added.

About the show cause notices issued by RPO, Chennai to Leena Manimekalai, the court noted that merely quoting some police verification report without actually putting her on notice about the same and claiming that criminal case is pending before the court would not suffice to pass the impugned order impounding the passport. The counsel for the Regional Passport Office had previously argued that they took action upon the adverse police report, invoking its own powers under Section 10(3) (e), and not pursuant to the trial court order under Section 104 CrPC. Assuming that to be true, the court notes:

"…An advert to Section 10 (3) (h) is mandatory, as without the passport authority being brought to notice about the passport holder evading warrant or summons or warrant of arrest by a court of law, the passport authority cannot act on the alleged report of the law enforcing agency and impound the passport, more so when on the crucial date, i.e., the date of renewal, no criminal case was pending against the 1st party..."

Upon the issuance of the first show cause notice and the reply of the petitioner, the passport authority had not initiated any action on the same if the reply of Manimekalai was non satisfactory. After another six months, when the passport authority came to know of the trial court order from the law enforcement agency, the second show cause notice was issued. Thereafter, expeditious steps were taken to pass an order for the impounding of Manimekalai's passport, the court observed.

"…The said act of the passport authority impounding the passport of the 1st party, in the above backdrop of the events, not only reveals total non-application of mind to the provisions of law which have been taken aid of to pass the said order, but also no proper reasoning has been given in the said order to establish its case for impounding of the passport...", the court unequivocally recorded while setting aside the impugned order.

While quashing the order and dismissing the criminal original petition by Susi Ganesan, the court also made it clear that the trial in the criminal defamation case must be completed in a swift manner notwithstanding these observations made. The court also instructed Susi Ganesan and Manimekalai and urged the latter to participate in the trial fully without seeking any unnecessary adjournments or absenting herself from hearings. The order has clarified that it doesn't mean the compulsory physical presence of Manimekalai for all the hearings; she must be represented by her counsel at all hearings so that trial can be concluded at an early date.

" As and when the presence of the 1st party is required, requisite summons shall be issued by the trial court to the 1st party well in advance and to this end, if the 1st party intends to proceed overseas for doing her further education, necessary plan be submitted in advance by the 1st party before the trial court and the trial court shall frame the trial schedule keeping in mind the necessity for the parties to be present at the time of trial and take steps to complete the trial as expeditiously as possible", the court elaborated.

Background

Leena Manimekalai, a renowned filmmaker, poet and artist, approached the Madras High Court by way of a writ, challenging the decision of Regional Passport Officer, Chennai to impound her passport. In 2018, when the #MeToo Movement was in the fore, Leena came forward with sexual harassment allegations against Director Susi Ganesan. A criminal defamation case was pending against the filmmaker since 2019, filed by Susi Ganesan in the Saidapet Magistrate Court.

In the petition before High Court, Manimekalai, through her Advocate VS Senthil Kumar, had submitted that the impounding order was passed by completely disregarding her reply to the show cause notice issued priorly. She also contended that the passport was renewed back in 2017, and since there wasn't any criminal proceedings against her at the time of renewal, it cannot be said that the renewal was completed by suppressing material facts.

She also submitted that her research work as a part of Master of Fine Arts (Film) course in York University, Canada on full scholarship has been put on hold due to the recent incidents, referring to her passport that was impounded.

Susi Ganesan was predetermined to harass her through the criminal defamation case, and the application filed before Saidapet Magistrate seeking directions to the concerned officer for impounding passport reveals his intentions, the petitioner stated. The plea was once closed by the Magistrate, which was challenged by Ganesan before High Court, but to no avail. The petitioner argued that it was only after that the Magistrate re-examined the earlier order upon a fresh petition by Susi Ganesan and directed the passport officer to impound, which in itself was illegality.

On 20^th October, the Order of Saidapet Magistrate allowing the impounding of passport by RPO was set aside by Chennai Sessions Court, which was duly informed to the Madras High Court on 22^nd October. In the order, Principal Sessions Judge R. Selvakumar held that impounding of passport cannot be done by the court u/s 104 of CrPC, referring to the apex court judgment in Suresh Nanda v. Central Bureau of Investigation (CBI).

While reserving the order, the judge had told the CGSC counsel Infant Dinesh that his arguments couldn't be accepted,

"Mr Dinesh, there is a limit for everything. You acted upon the adverse police report. Don't make hue and cry as if the petitioner has committed a huge crime", the court noted then.

Case Title: Leena Manimekalai v. Regional Passport Officer, Susi Ganesan v. Leena Manimekalai

Case No: WP/20411/ 2021; CRL OP 20337/2021