IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2647/2018 BETWEEN:
SRI.JAYARAM, S/O T.NARAYANA RAO, AGED ABOUT 65 YEARS, R/AT NO.T-4, 3RD FLOOR, SILVER WAVES PRAKRUTHI APARTMENTS, KENGERI SATELLITE TOWN, BENGALURU – 560 030.
(BY SRI.MUNIYAPPA, ADVOCATE) AND:
1. SRI.SHAIK FAHED AHMED, S/O SHAIK ALTAF AHMED, AGED ABOUT 38 YEARS, R/AT NO.19, MILLERS ROAD, MILLER APARTMENTS B3, BENSON TOWN, BENGALURU – 560 046.
... PETITIONER 2. THE STATE OF KARNATAKA, BY S.H.O. ADUGODI POLICE, BENGALURU – 560 030.
3. THE REGIONAL PASS -PORT OFFICER, MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA, 8TH BLOCK, 80 FEET ROAD, KHB GAMES VILLAGE, KORAMANGALA, BENGALURU – 560 095.
... RESPONDENTS (BY SRI.M.T.NANAIAH, SENIOR COUNSEL A/W SRI. PRABHUGOUD B TUMBIGE, ADVOCATE FOR R1; SRI.S. CHANDRASHEKARAIAH, HCGP FOR R2; SRI.ADITYA SINGH, CGC FOR SRI.C.SHASHIKANTH, ASG FOR R3) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ADDITIONAL CHARGE SHEET DATED 25.07.2017 FILED BY THE 2ND RESPONDENT IN C.C.NO.23545/2011 ON THE FILE OF THE VI A.C.M.M., AT BANGALORE FOR THE OFFENCES ALLEGED TO HAVE BEEN COMMITTED BY THE PETITIONER P/U/S 468, 471, 420, 120B, 201 READ WITH 34 OF IPC AND SECTION 12(B) OF THE PASS PORT ACT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for admission, by consent of learned Advocates appearing for both parties it is taken up for final disposal.
2. Petitioner who has been arraigned as accused No.4 (on 25.07.2017) in C.C.No.23545/2011 registered by Adugodi Police for the offences punishable under Sections 468, 471, 420, 120(B) and 201 r/w Section 34 of IPC and Section 12(B) of the Passport Act pending on the file of VI Addl. Chief Metropolitan Magistrate, Bengaluru, is before this Court with a prayer to quash said proceedings.
3. First respondent herein initially filed a complaint on 13.05.2010 vide Annexure-‘B’ at Adugodi Police Station alleging that, he had married Smt. Mariam Fasihuddin as per Muslim custom on 02.08.2007 and she gave birth to a baby boy on 02.06.2008, and in order to obtain passport for their minor son, she had informed the complainant that she would obtain passport with her father’s help through a travel agent. As such, she obtained passport and intimated him to provide with sponsorship letter addressed to the British High Commission, United Kingdom, Bangalore and same was forwarded to her. Later on she is said to have changed her mind and did not intend to proceed to United Kingdom on the ground that she intends to follow her father’s instructions and act accordingly. Complainant has further alleged that family members of wife had assured to take care of her and to resolve said issue.
4. Complainant claims to have landed in India on 18.11.2009 and found that passport obtained in respect of their son was without his consent and it was alleged his wife and father-in-law had forged his signature on the application form to obtain passport to their minor son and have submitted a forged document as genuine and produced the same before Regional Passport Authority and as such, he sought for taking action against his wife, father-in-law and travel agent. Said complaint came to be registered in Cr.No.141/2010 by respondent No.2-Police Station for the offence punishable under Sections 468, 471, 420 r/w Section 34 of IPC and investigation was taken up. Subsequently, first respondent-complainant on 16.08.2015 has given further statement reiterating his earlier complaint by enclosing copies of letters obtained by him under RTI Act from the Office of Passport Authority and an omnibus statement came to be made that officials of the Passport Office had also connived with the accused persons for issuance of passport to his minor son. On the basis of above said complaint and further statement, an application came to be filed by the prosecution under Section 173(8) of the Cr.P.C. before the jurisdictional Magistrate, who allowed the application and ordered for further investigation and as such, petitioner herein came to be arraigned as accused No.4 in C.C.No.23545/2011 on 25.07.2017. Hence, petitioner is before this Court for quashing of said proceedings.
5. I have heard the arguments of Sri.Muniyappa, learned counsel appearing for petitioner, Sri. M.T.Nanaiah, learned Senior Counsel appearing on behalf of respondent No.1, Sri.S.Chandrashekharaiah, learned HCGP appearing for respondent No.2-State and Sri Aditya Singh, learned Central Government Standing Counsel appearing on behalf of Sri.C.Shashikanth, learned Additional Solicitor General for respondent No.3. Perused the records.
6. It is the contention of Sri.Muniyappa, learned Counsel appearing for petitioner/accused No.4 that a bare reading of the complaint does not suggest about any complicity on the part of petitioner or any specific overt act attributable to the petitioner as also the procedure adopted for issuance of passport to minor child by the petitioner and the officials of Regional Passport Office, Bengaluru. It is also contended that application for issuance of passport to minor child, which has been destructed is as per the standing instructions of the passport manual. It is submitted that destruction of an application after a fixed period is based on the instructions given in the manual and said procedure having been adopted by petitioner in discharge of official duties would not attract penal provision being invoked and as such, he prays for quashing of the proceedings.
7. Per contra, Sri M.T.Nanaiah, learned Senior Counsel appearing on behalf of respondent No.1 and Sri.S.Chandrashekharaiah, learned HCGP appearing for respondent No.2-State would support the prosecution of petitioner and contend that Regional Passport Officer - Bengaluru has been taking inconsistent stands and the very fact that application relating to issuance of passport to minor child, which is said to have contained the signature of petitioner has been wantonly destroyed, so as to erase the evidence that was available to convict the petitioner and other accused persons and as such, initiation of prosecution against petitioner and other accused person is justified and there is no error of jurisdiction in filing the charge-sheet by the investigating officer implicating the petitioner as accused No.4. Hence he prays for dismissal of the petition. He would also submit that application filed by the petitioner for discharge has also been dismissed way back in the year 2018 i.e., on 15.03.2018 and as such, petitioner may be directed to face the trial.
8. Sri Aditya Singh, learned Central Government Standing Counsel appearing for respondent No.2 has reiterated the statement made in the affidavit filed by third respondent and he would specifically contend that there was no mens rea on the part of the officials of third respondent in destroying the records and as per passport manual, application in question came to be weeded out after one year i.e,. during the year 2010 and subsequently, destroyed in the year 2011 by an agency which was out sourced. As such, he prays for suitable orders being passed.
9. The bone of contention in the present petition relates to the application bearing No.BNGKA00051609, which relates to the passport issued by 3rd respondent to Master Shaik Faisal Ahmed, who is the son of Shaikm Fahed Ahmed and Mariam Fasihuddin born on 02.06.2008. A bare reading of complaint dated 13.05.2010 does not disclose about any allegation or averment made with reference to the petitioner/accused No.4. However, in the further statement furnished to Audugodi Police Station on 16.08.2015, it has been alleged by 1st respondent as under:
“6. I further submit that the Accused No.2, along with Accused No 1 and Accused No 3 have managed to obtain the passport for the minor child with a quid pro quo understanding with the person/office staff concerned at the Regional Passport office, Bangalore while issuing the passport for the Minor Child. I submit that as per the Passport Act for the Minor’s Passport to be issued either the originals of the passport of both the parents is required or presence of both the parents is required and in the case when one parent is residing abroad then in such a case No objection certificate from the Indian High Commission is required. It is quite obvious none of the documents were present before the office staff concerned at the Regional Passport office, Bangalore. However, under the influence of all the accused the officer staff concerned had overlooked and issued passport to the minor child thereby helping the accused gain wrongly. I therefore request you to inquire the office staff concerned as he is liable to be punished for the offence committed which is punishable both under Indian Penal Code and the Passport Act. “ 10. A bare reading of aforesaid allegations is made alleging Passport Officials have issued passport to minor child without relevant data being produced. However, there is no specific overt act alleged against petitioner. It is the grievance of the complainant i.e., first respondent herein that while submitting the application for grant of passport to minor son his signature has been forged by his wife and father-in-law and as such, original application was required to be produced and on an attempt being made by Investigating officer, it has been stated that said application has been weeded out and destroyed with the sole intention of destroying the best piece of evidence.
11. The Regional Passport Officer - third respondent herein has filed an affidavit narrating the sequence of events, which has ended in destruction of original application, which was said to have been filed by the mother of the minor child for grant of passport. It would also disclose jurisdictional police during the course of investigation had intimated the Regional Passport Officer to furnish a copy of the original application. However, scanned copy of the original application came to be furnished to the jurisdictional police on 02.07.2010 vide Annexure-R2 and it has been intimated by third respondent to the jurisdictional police by communication dated 18.02.2010 vide Annexure-R3 stating thereunder that original application is not available as the same is weeded out for destruction. As per communication dated 18.02.2010-Annexure-R3 jurisdictional police have been informed by Regional Passport Office that as per Passport Manual, retention and destruction of the records would be weeded out and destroyed as indicated thereunder in case of passport application. It can be noticed that if an application is not scanned it is required to be retained for a period of 5 years. However, in case, application is scanned it is to be retained for a period of one year as per Cl.16(1) vide Annexure - ‘G’. In fact, Regional Passport Officer has intimated the Investigating officer way back on 02.07.2010 stating that original application is not available and in the subsequent communication dated 18.02.2010- Annexure-R3 the investigating officer has been further informed that original application sought for is not available as it is weeded out for destruction.
12. On a pointed question to the learned counsel appearing for respondent No.3 as to whether said application was available or destroyed, he has stated that application was weeded out i.e., the application in question had been taken out from the original file and kept along with records, which are to be destroyed and accordingly, said application after having been weeded out was kept with other records for being destroyed. In fact, in the communication dated 12.07.2017 Annexure- R7 this fact has also been amplified by Annexure-R3. It is stated:
“2. Records / files which are weeded out for destruction (i.e. dumped cannot be retrieved or traced out since they are not kept in any serial order. Hence the above file was inaccessible at the time of receipt of your letter dated 08/06/10.
3. All the weeded out files of the year 2009 were finally handed over to M/s S.L. Enterprises on 03/03/2011 for destruction, net weight 24840 Kgs of files. Copy of file notings in the matter is enclosed herewith for your perusal.”
13. Weeding of records and destruction of records are two separate and distinct acts which the Regional Passport Officer would undertake. In the instant case, even according to the affidavit filed by respondent No.3, the application in question was weeded out on 18.02.2010. In fact, scanned copy of the application dated 27.01.2009 has been forwarded to the investigating officer by Annexure-R3 under communication dated 22.02.2010. However, destruction of the said application along with other records is said to have been carried out by M/s S.L. Enterprises on 03.03.2011. This would clearly indicate that said application was obviously in the custody of the Regional Passport Officer or atleast in the office of Regional Passport Office till said date. Either the office of the Regional Passport Officer could have intimated the Inspector of Police, Adugoid Police Station this fact or could have directed the Investigating officer to obtain appropriate orders from the jurisdictional Magistrate for securing the weeded out records. Thus, same has not been done for reasons best known. It is not the case of the Regional Passport Officer that as on date of requisition made by the Investigating officer, application in question had already been destroyed, but only intimated that same has been weeded out. In other words, application in question which is said to be weeded out even according to the Passport Manual is by removing the said application from the file for being destroyed. As such, Regional Passport Officer ought to have been made it explicitly clear to the Investigating officer about the actual status of the application in question and on such intimation by 3rd respondent further steps could have been taken by the Investigating officer. However, communication from the office of Regional Passport Office to Investigating officer indicate as though the said application not being available at all.
This view is fortified by the very admission of the Regional Passport Officer in the communication dated 18.02.2010 Annexure-R3, which reads as under:
“As mentioned in this Office letter of even number dated 02/07/2010 ( copy enclosed) the original application is not available as the same is weeded out for destruction.” This is for information.”
14. A bare reading of the above communication would indicate that original application itself is not available, but on the other hand, said application which had been weeded out from the original file and transferred to record room was still available with the Regional Passport Office along with other records and the Regional Passport Officer has further clarified this in the communication dated 12.07.2017 vide Annexure-R7 stating thereunder that said application/file cannot be retrieved on the ground files are not kept in serial order. In other words, file was in the record room along with other weeded out records. Be that as it may. It is for the authorities to take appropriate steps in this regard to ensure such incident do not recur in future.
15. Turning my attention to the facts of the case on hand, as already noticed hereinabove, there is no specific overt act alleged against petitioner, who at the undisputed point of time was working as Superintendent in the “Policy Section” of the Office of third respondent. If the Investigating officer intended to have the original application, nothing prevented him from filing appropriate application before the jurisdictional Magistrate to summon entire records from the Regional Passport Office in the light of the communication dated 18.02.2010 vide Annexure- R.3 issued by third respondent. Said exercise has not been undertaken by the Investigating officer for reasons best known.
16. The dispute in the instant case relates to matrimonial dispute between petitioner and his wife including his father-in-law and brother-in-law and in the process, official of the Regional Passport Office i.e., accused No.4-petitioner herein, is sought to be implicated on the basis of an omnibus statement. Hon’ble Apex Court in the case of STATE OF HARYANA & OTHERS VS. BHAJANLAL & OTHERS reported in 1992 Supp (1) SCC 335, has held even the allegation made in the complaint were to remain uncontroverted, if it does not lead to conviction of the accused/petitioner and continuation of the proceedings against the petitioner would definitely be onerous and would be an abuse of process of law and it would not sub-serve ends of justice. On the other hand, if proceedings initiated against petitioner is continued it would be waste of precious judicial time.
17. In that view of the matter, this Court is of the considered view that petition deserves to be allowed subject to the observation made herein above.
Hence, I proceed to pass the following:
ORDER (i) Criminal Petition is hereby allowed.
(ii) Proceedings pending against petitioner in C.C.No.23545/2011 on the file of VI Addl. Chief Metropolitan Magistrate, Bengaluru, registered for the offences punishable under Sections 468, 471, 420, 120(B), 201 r/w Section 34 of IPC and 12(B) of the Passport Act, is hereby quashed.
(iii) Petitioner is acquitted of the said offences.
SD/- JUDGE *PSG