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Judgment
Petitioner herein, who has described himself as the Public Interest Litigant General Secretary, Madras District Social Welfare Association, has
moved this Court for a direction to the respondents 1 to 3 to seise the passport of the fourth respondent and pass suitable orders for his
presecution for the alleged violation of the provisions of S. 3 read with S. 12 of the Passports Act.
The fourth respondent is a member of the Council of State of the Parliament of India. He allegedly left India on 5-2-1989 and reached Sri
Lanka on 7-2-1989 without having a passport or any other travel document. He has himself, it is said, made press statements on two occassions
admitting this fact. Petitioner has stated that the fourth respondent, who was expected to abide by law and respect law more than any other
person, admittedly violated the provisions of the Passports Act (hereinafter referred to as the Act). He has made himself liable for prosecution for
the said offence. No action was, however, taken against him by either the Government of India or the Government of Tamil Nadu. Petitioner
realised that a serious offence of this kind which would have been promptly dealt with by initiating action for the fourth respondent''s prosecution
was being ignored by respondents 1 and 2 and that the Director, Central Bureau of Investigations would have taken notice of the said Act of the
fourth respondent as according to the petitioner, the conduct of the fourth respondent in reaching a foreign country without any valid travel
document clearly shows that our Coast Guard Intelligence were/are not working vigilantly and if the same state of affairs continues, it will
jeopardise the nation''s security and its very existence. Professing thus his concern of interest and the people of the country, petitioner has moved
this Court for the relief as indicated.
Section 3 of the Act says :
No person shall depart from, or attempt to depart from, India unless he holds in this behalf a valid passport or travel document. Explanation :- For
the purposes of this section. -
(a) ""passport"" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the
conditions prescribed under the passport Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;
(b) ""travel document"" includes a travel document which having been issued by or under the authority of the Government of a foreign country
satisfies the conditions prescribed.
According to the petitioner, the fact that the fourth respondent departed from India without a passport or a travel document as envisaged u/S. 3 of
the Act is not in dispute. Thus according to him, the fourth respondent has violated the provisions of S. 3 of the Act, the contravention whereof has
been made punishable u/S. 12 in the following words :
(1) Whoever -
(a) contravenes the provisions of S. 3; or
(b) knowingly furnished any false information or suppresses any material information with a view to obtaining a passport or travel document under
this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport of travel document; or
(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the
prescribed authority; or
(d) knowingly uses a passport or travel document issued to another person; or
(e) knowingly allows another person to use a passport or travel document issued to him,
shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with
both.
(2) Whoever abets any offence punishable under sub-sec. (i) shall, if the Act abetted is committed in consequence of the abetment, be punishable
with the punishment provided in that sub-section for that offence.
(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no
punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which
may extend to five hundred rupees or with both.
(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double
the penalty provided for the latter offence.
The matter was placed before this Court on 14-3-1939. Action of motion returnable in 4 weeks to respondents 1, 2 and 4 was issued. The
matter has now been listed before me for hearing after notice. The respondents have since appeared. Heard.
Mr. K. Gandhi, learned counsel appearing for the fourth respondent has stated that it is not correct to allege that the fourth respondent did not
possess a passport. He thus cannot be said to have travelled without a passport. Although as alleged he might have travelled and entered into Sri
Lanka without Sri Lankan''s Government permitting him to enter its territory, he committed no offence against any law in India including the one
prescribed u/S. 3 of the Act.
Mr. B. Sriramulu, learned counsel appearing for the Director, Central Bureau of Investigation has stated that petitioner has totally misconceived
the role of the Central Bureau of Investigation. Inasmuch as he has forgotten that its jurisdiction is limited to the matters notified u/S. 3 of the Delhi
Special Police Establishment Act, the matter is one with reference to which petitioner has made certain grievance cannot be directly taken
cognizance of by the Central Bureau of Investigation. In any case, an offence committed on the soil of the State of Tamil Nadu that is to say within
the territorial jurisdiction of the Tamil Nadu Government cannot be registered or investigated by the Central Bereau of Investigation without the
consent of the State Government as contemplated u/S. 6 of the said Act.
Learned Advocate-General appearing for the State of Tamil Nadu has contended that firstly there has been no offence at least against any law
of the country in the fourth respondent''s departure from India to Sri Lanka as he held a passport and secondly if there has been any violation by
him of any such law, the State must be given a prudent discretion to decide in the public interest whom to prosecute and when to prosecute.
The examination of the provisions of the Act would reveal that a person having a passport would be entitled to depart from India. A person,
who holds a passport needs no other travel document. However, a person having a travel document instead of a passport, may also be entitled to
depart from India if the documents possessed by him are issued by or under the authority of the Government of a foreign country and they satisfy
the conditions prescribed. The word ''prescribed'' has been defined u/S. 2(d) of the Act to mean ""prescribed by rules made under the Act."" Thus it
will be difficult, in view of the fact that the fourth respondent had a passport at the relevant time, to hold that S. 3 of the Act was violated by him
when he left India for Sri Lanka.
Learned counsel for the petitioner, however, suggested that for entry into Sri Lanka, the fourth respondent was required to possess a visa issued
by the competent authority appointed by the Government of Sri Lanka. But there has been any law in Sri Lanka which bars entry of any person
without a visa, about which no material has been brought on the record of this case, and that by the fourth respondent, he committed an offence
against that law of Sri Lanka for which he cannot be prosecuted by authority in India. For any such prosecution by any authority in India, a
prescription of law is needed. No such prescription of law has been brought to my notice.
Even proceeding on the assumption that there has been some indiscretion on the part of the fourth respondent when he decided to leave India
for Sri Lanka without using the passport and thus there has been some transgression of law by him, it is a case in my view, in which respondents 1
to 3 cannot be blamed for not initiating any action for prosecution of the fourth respondent. S. 12 of the Act has prescribed a punishment of six
months imprisonment for the offence of departure from India without a valid passport or travel document. In other cases, on contravention of any
condition of a passport or travel document or any provision of the Act, punishment prescribed is imprisonment for a term which may extend to
three months or with fine which may extend to Rs. 500/- or with both. If an offence, if any it, can reasonably to taken to be slightl or minimal, one
may draw the presumption u/S. 95 of the I.P.C. which states :
Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so
slight that no person of ordinary sense and temper would complain of such harm.
Section 157 of the Criminal Procedure Code, which states that an officer in charge of a police station, if, from information received or otherwise,
has reason to suspect the commission of an offence which he is empowered u/S. 156 to investigate a cognizable case, shall proceed to investigate
the facts and circumstances of the case, has got a proviso, which states ""when information as to the commission of any such offence is given against
any person by name and the case is not of a serious nature, the officer in charge or a police station need not proceed in person or depute a
subordinate officer to make an investigation on the spot"" and further ""if it appears to the officer in charge of a police station that there is no sufficient
ground for entering on an investigation, he shall not investigate the case."" It is difficult to see why the petitioner did not go to the Police making a
complaint about the offence committed by the fourth respondent. Even the Police would have legitimately ignored the complaint of the petitioner as
on the facts aforesaid, it would be difficult to say that there was any mens rea present in the action of the fourth respondent in deciding to leave
India and go to Sri Lanka. A public interest for the purpose of no action in Court should not be confused with any and every legal action which the
State is expected to take. One who is aware of the criminal jurisprudence and the procedure prescribed by law in this behalf cannot even remotely
suggest that a prosecution can be initiated only by the Director of the Central Bureau of Investigation, a Government of the State or Union of India.
Law in this behalf can be brought in motion by any person bringing information about the commission of the offence to the notice of the officer in-
charge police Station. In case the Officer in charge of Police Station fails to act in accordance with law, S. 36 of the Criminal Procedure Code
provides another forum to such a person to bring to the notice of an officer superior to the in charge of the police Station that a cognizable offence
has been committed and that the Police is required to act u/S. 3 the Police Act alone, a Government of the State comes to exercise the power of
superintendence and control. A complaint against the State of no action taken by it can be available to a person only when he approached the
officer in charge of the Police Station and he took no action and thereafter he approached the officers superior to the officer in charge of the Police
Station and they too failed to act. Petitioner never did any such thing. He decided to come to this Court, it seems, not with a view to prosecute the
fourth respondent, but intending to make a noise as to the violation of law and allege that a serious offence has been committed by a member of
Parliament. On the question of locus standi of a person to maintain a writ of certiorari, which rule in my view, has to apply strictly to a writ of
mandamus or for any other direction under Art. 226 of the Constitution of India, the Supreme Court in Jasbhai Motibhai Desai Vs. Roshan
Kumar, Haji Bashir Ahmed and Others, held (para 36 of AIR) hold :
It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories (1)
''Person aggrieved''; (ii) ''stranger''; (iii) busybody of meddlesome interloper. Persons in the last category are easily distinguishable from those
coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They
pretend to act in the same of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the
passtime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win
notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of
administration. The High Court should do well to reject the applications of such busybodies at the threshold.
Thereafter the Supreme Court said (para 37 of AIR) :
The distinction between the first and second categories of applicants, though real, is not always welldemarcated. The first category has, as it were,
two concentric zones a solid central zons of certainty, and a grey outer circle of lessening certainty in a sliding contrifugal scale, with an outermost
nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants
undoubtedly stand in the category of ''person aggrieved''. In the grey outer-circle the bounds which separate the first category from the second,
intermix interfuse and overlap increasingly in a centrifugal direction. All persons in these outerzone may not be ""persons aggrieved.
Some broad tests which are applied therefore to find out who amongst the strangers is a person aggrieved, who can maintain a litigation in a Court
of law on behalf of another, the Supreme Court has said (Para 38 of AIR) : ""...... Whether the applicant is a person whose legal right has been
infringed ? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law has been prejudicially and directly affected by
the act or omission of the authority complained of ? Is he a person who has suffered a legal grievance, a person ""against whom a decision has been
pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something"" ?
Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the
public ? Was he entitled to object and be heard by the authority before it took the impugned action ? If so, was he prejudicially affected in the
exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of the
words ""person aggrieved"" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the
community ? Or is it a statute dealing with private rights of particular individuals ?
In S.P. Gupta Vs. President of India and Others, , the Supreme Court has said (para 17) :
It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of
persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision
or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is
by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any
member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach
of any fundamental right of such person or determinate class of persons, in this court under Art. 32 seeking judicial measure for the legal wrong or
injury caused to such person or determinate class of persons ....... But we must hasten to make it clear that the individual who moves the Court for
judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if be is acting for personal gain or
private profit or out of political motivation or other oblique consideration the Court should not allow itself to be at the instance of such person and
must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition
filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of
jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such
determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third
party, where there is no effective legal aid organisation which can take care of such cases.
It seems that the petitioner has not been exercising prudent discretion and he has been coming to this Court frequently raising issues, which do
not warrant any public interest action. No such issue as one brought in the instant case can be called an issue concerning any legal injury to a class
of the population of the public at large. At least on two earlier occasions in point of time, this Court has recorded that the petitioner came to this
Court not in the interest of the public but for interest aliunde. I do not say whether these observations in the judgments of this Court in W.M.P.
Nos. 8703 and 9707 of 1988 in W.P. No. 5992 of 1988 and Application Nos. 2957, 3274, 4578, 4579 and 4580 of 1988 dated 8-7-1988 and
4-1-1989 respectively were warranted on the facts of those cases or not. But in the instant case, however, I am inclined to observe that the
petitioner had no cause of the public to file the writ petition. The reasons for my said conclusions can be found above as well as the fact that the
fourth respondent has been made to appear before this Court only because the petitioner has chosen to file this writ petition. Had this been a writ
petition brought by someone else, I would have awarded heavy costs. However, since the petitioner has claimed to represent a Social Welfare
Association, I refrain from making any such order.
In the result, this writ petition is dismissed. No costs.
Petition dismissed.