This writ petition has been filed for the issuance of a Writ of Mandamus directing the respondent to issue passport to the petitioner based on his passport application No.TR2068098752514 and Application Reference No.14-1009904273.
2.According to the petitioner, he is a Diploma holder and he applied for passport in the respondent office on 24.11.2014. But the respondent has not issued passport. When the petitioner approached the respondent, he was informed that the respondent received an information from the police verification that a criminal case is pending against the petitioner in Crime No.174 of 2013 on the file of Thottiam Police Station under
Sections 294(b),324,506 of IPC and therefore, the passport cannot be issued. Hence, the petitioner filed the present writ petition with the relief as stated supra.
3.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4.The learned counsel appearing for the petitioner placed on a decision reported in 2014(2) CWC 684 (M.Jaihar William vs. State of Tamil Nadu). According to the said decision, mere pendency of the FIR cannot be construed as pendency of criminal proceedings, unless the Judicial Magistrate takes cognizance of offence on filing of charge sheet of complaint and investigation against accused.
5.The learned Judge of this Court taking note of various decisions rendered on the subject matter, categorically concluded that mere pendency of the FIR cannot be a bar for consideration of the claim for issuance of passport. The learned Judge has clearly held in paragraph 10 of the said decision as follows:-
?10.For the same proposition of law, the learned counsel for the petitioners has also relied upon the judgment delivered by the Andhra Pradesh High Court reported in 1994 Cri.L.J.257 [Mathumari China Venkatareddy and others Vs. State of Andhra Pradesh], wherein it has been held that until the charge-sheet has been filed, a Magistrate cannot be said to have taken cognizance of any offence and that the Magistrate can take cognizance of the offence and direct the issue of process only on receipt of a police report and that till that stage is reached, he is said to be acting only as a Magistrate controlling the investigation made by the police. It has been further held in the said judgement as follows:-
?The judicial act commences only when the charge-sheet is in order and the Magistrate proceeds further under Chapter XVI. Unless the charge-sheet is in the official custody of the Court together with its accompaniments to be furnished to the accused, it cannot be construed that there is a filing of charge-sheet. Chapter XVI relates to commencement of proceedings before Magistrates, process to be issued when Magistrate takes cognizance of the offence.?
Therefore, it is clear that unless the Judicial Magistrate takes cognizance of the offence, on filing of charge-sheet on completion of investigation against the applicant, it cannot be said that the proceedings are pending before the Criminal Court. Therefore, in my considered opinion, the 3rd respondent cannot mechanically refuse to issue passport to the petitioners, merely for the reasons that the FIRs are pending against the petitioners. On receipt of the application for passport, the 3rd respondent shall consider the same and pass appropriate orders.?
6.Following the above-said decision, in similar matter, I have passed an order dated 13.03.2017 made in W.P(MD)No.3927 of 2017 directing the respondent therein to consider the application for re-issuance of passport submitted by the petitioner without reference to the FIR lodged against him and issue passport, if he is otherwise eligible for the same.
7.From the above, it could be seen that the present issue is squarely covered in the above said decision rendered by the learned Judge of this Court.
8.Following the same, the respondent is directed to consider the application for issuance of passport submitted by the petitioner without reference to the FIR lodged against him and issue passport, if he is otherwise eligible for the same. The respondent shall comply with the said direction on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order.
9.With the above direction, this Writ Petition is allowed. No costs.
To The Regional passport Officer, Regional Passport Office, Bharathi Ula road, Racecourse Salai, Madurai District..