IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 26.08.2022

Pronounced on : 08.09.2022

CORAM

 

THE HON’BLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.OP.Nos.6111 & 6130 of 2021 and

Crl.MP.Nos.4022, 4023 4037 & 4038 of 2021

Crl.OP.No.6111 of 2021

Devipriya Vassoudevane           ..Petitioner

Vs.

1.State rep by

Sub Inspector of Police,

Fake Passport Team,

Central Crime Branch,    Vepery, Chennai 600 007

crime No.274 of 2019

2.A.S.Kalaivani     ..Respondents

PRAYER:

Criminal Original Petition is filed under Section 482 of Cr.P.C. to call for the records relating to CC.No.2031 of 2021 on the file of Chief

Metropolitan Magistrate, Egmore, Chennai and quash the same.

For Petitioner       : Mr.B.Kumar,

Senior Counsel

for M/s.Usharaman

For Respondents

For R1        : Mr.A.Gopinath,

Government Advocate(crl.side)

Crl.OP.No.6130 of 2021

Jagapriyan           ..Petitioner

Vs.

1.State rep by

Sub Inspector of Police,

Fake Passport Team,

Central Crime Branch,    Vepery, Chennai 600 007

crime No.303 of 2019

2.A.S.Kalaivani     ..Respondents

PRAYER:

Criminal Original Petition is filed under Section 482 of Cr.P.C. to call for the records relating to CC.No.2032 of 2021 on the file of Chief Metropolitan Magistrate, Egmore, Chennai and quash the same.

For Petitioner       : Mr.B.Kumar,  Senior Counsel  for M/s.Usharaman

For Respondents

For R1        : Mr.A.Gopinath,

Government Advocate(crl.side)

COMMON ORDER

The criminal original petitions have been filed to quash the

proceedings in CC.Nos.2031 & 2032 of 2021 on the file of Chief Metropolitan Magistrate, Egmore, Chennai, thereby taken cognizance for the offences under Section 12(1-A)(a) of Passports Act, in Crime Nos.274 & 303 of 2019, as against the petitioners.

2. The case of the prosecution is that the petitioners, who are brother and sister, have applied for fresh passport at Regional Passport Office, Chennai on 08.03.2005 and 14.02.2007 respectively at Regional

Passport Office, Chennai by suppressing their nationality and acquiring

French Nationality as early as in the year 1989 by the judgment of the District Court, Paris, France. They were issued Indian Passport. They have acquired French Nationality and issued with the certificate of French Nationality on 28.09.1989. They have suppressed this fact and applied for fresh Indian Passport and they were issued Indian Passport No.F2153366 and No.G3716302 at Regional Passport Office, Chennai on 08.03.2005 and 14.02.2007 respectively. Subsequently they obtained renewed passport No.G1797890 and No.Z2691523 on 08.02.2007 and 09.09.2014 respectively. Again, the petitioner in Crl.OP.No.6111 of 2021 obtained renewed passport No.P3670806 on 15.09.2016. Therefore, they had committed offence under Section 12 (1-A)(a) of Passports Act. Further alleged that the Consular General of French, while issuing certificate to the petitioners stated in the certificate that a person who has never held a French passport or a French identity card, even if previously eligible for French nationality can only be considered as being of French nationality and they had also mentioned that the petitioners had been issued with certificate of French nationality in the year 1989 itself. Thereafter, the petitioners obtained French passport on 01.07.2019 in passport No.19DH75427 and No.19DH75428. Therefore, the second respondent lodged complaint and the first respondent registered FIR in crime Nos.274 & 303 of 2019 and after completion of investigation, filed final report. The trial court had taken cognizance for the offence under Section 12(1-A)(a) of Passports Act.

3. B.Kumar, learned Senior Counsel appearing for the

petitioners submitted that when the petitioners were minor, their mother applied before the District Court in France as she was a French Citizen for declaration that her minor children born to her are French citizens. At that time, the petitioners were aged about 8 years and 12 years respectively. Therefore, the petitioners had no knowledge about the order passed by the

Court in France. Their father was an Indian. They born in India to an Indian citizen and as such, they became Indian citizens. The person who is an Indian citizen at the time of independence to continue to have status as the person is a citizen by birth as they born on 29.04.1981 and 07.10.1977 after 26.01.1950 but before December, 1992, as prohibited under Section 4(a) of the Indian Citizenship Act. A minor who is a citizen of India by virtue of Section 4 is also citizen of any other country, is ceased to be citizen of India if he / she does not renounce citizenship or nationality of any other country within six months of attaining full age. Thus, it requires knowledge that the petitioners had become citizen of France in the year 1989.

3.1 He further submitted that there is no material to show that the petitioners who were minors at the time of aged about 8 years and 12 years respectively were ever aware that their mother obtained citizenship and also citizenship to them in France. To attract the offence under Section 12(1-A)(a) of the Act, guilty intention or mens rea is necessary and it cannot be doubted for every offence of penal nature mens rea is required to be proved unless it is specifically excluded. It is not so excluded under Section 12(1-A)(a) by the statute. Section 12(1-A)(a) specifically uses the expression when a non citizen makes an application for passport suppressing information about his nationality. The term suppression itself includes and imposes a guilty knowledge as a requirement. As stated supra, the petitioners were never aware that they had obtained French citizenship in the year 1989 itself.

4. A.Gopinath, Government Advocate(crl.side) appearing for the first respondent filed counter, which revealed that the petitioners acquired French nationality vide judgment by the District Court of Paris dated 06.10.1989 and they were issued certificate of French Nationality. They applied for fresh Indian Passport at Regional Passport Office by suppressing their nationality and obtained Indian Passport. Subsequently on two occasions, they were renewed in favour of the petitioners. They also applied for French passport by using the certificate of French nationality. The provision under Section 12(1-A)(a) of Passports Act, 1967 states that whoever, not being a citizen of India makes an application for a passport or obtains a passport by suppressing information about his nationality, he is held liable for punishment. Therefore, the grounds raised by the petitioners cannot be considered in the quash petition and it can be considered only before the trial court during trial.
5. Heard, Mr.B.Kumar, Senior Counsel appearing for the petitioners and Mr.A.Gopinath, Government Advocate(crl.side) appearing for the first respondent.

 

6. Admittedly, when both the petitioners were at the age of 8 and 12 years respectively, their mother applied for their French nationality before the District Court, Paris, France. On the strength of the certificate of French nationality, they obtained French passport in the year 2019. Both the petitioners born to Indian father and they were being born in India to Indian citizen, automatically they became Indian citizens. On the strength of their citizenship, they applied for passport before the second respondent and obtained Indian passport. They were issued passport and subsequently renewed on two times. However, they applied for French passport on the strength of the certificate of French Nationality which was issued by the District Court, Paris, France and they were also issued French Passport on 01.07.2019. Therefore, both the petitioners when they have applied for surrendering certificate, after acquiring French nationality, the second respondent lodged complaint alleging that they suppressed their French nationality and obtained Indian passport. Therefore, they never applied for French nationality when they attained majority. Only at their age of 8 and 12 years respectively, their mother applied for French citizenship and they were issued certificate of French nationality.
7. However, the petitioners after obtaining Indian passport on the strength of their birth in India, they also applied for French passport. However, after obtaining French passport, they intended to surrender their Indian Passport. Therefore, it is clear that they had no knowledge about their certificate of French nationality issued in the year 1989. Therefore, offence under Section 12(1-A)(a) of Passports Act would not attract as against the petitioners, since they had no knowledge about their French nationality and as such there is no question of suppression of any information about their nationality and the impugned proceedings cannot be sustained as against the petitioners, which are liable to be quashed.
8. Accordingly, the entire proceedings in CC.Nos.2031 & 2032 of 2021 on the file of Chief Metropolitan Magistrate, Egmore, Chennai, thereby taken cognizance for the offences under Section 12(1-A)(a) of Passports Act, in Crime Nos.274 & 303 of 2019 is quashed as against the petitioners and both the criminal original petitions are allowed.

Consequently, connected miscellaneous petitions are closed.

08.09.2022

Speaking order

Index      : Yes Internet  : Yes lok

 

G.K.ILANTHIRAIYAN, J.

lok

To

1.Chief Metropolitan Magistrate,

Egmore, Chennai

2.Sub Inspector of Police,    Fake Passport Team,

Central Crime Branch,

Vepery, Chennai 600 007

3.The Public Prosecutor,

High Court of Madras

Crl.OP.Nos.6111 & 6130 of 2021

08.09.2022

 

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