Delhi District Court
Manish Luthra vs Through The Station House Officer on 26 March, 2024
1
IN THE COURT OF SH. VINEET KUMAR:
ADDITIONAL SESSIONS JUDGE-02; E-COURT:
SHAHDARA: KARKARDOOMA COURT: DELHI.
Crl. (R) No. 28/2024
Manish Luthra
s/o Kewal Nath Luthra
r/o C-24, Anand Vihar,
New Delhi-110092.
............... Revisionist
Versus
The State
Through The Station House Officer
Police Station Anand Vihar,
Delhi-110092.
............... Respondents.
ORDER
1. Present revision is preferred u/s 397 Cr. PC by the revisionist against the order dated 22.01.2024 (hereinafter referred to as "impugned order") passed by Ld. MM/Mahila Court-02 (Shahdara), KKD Courts, Delhi, whereby Ld. Court granted 'no objection certificate' for the renewal of passport for a period of 2 years instead of 10 years.
2. Briefly stated, the revisionist is an accused in case FIR u/s 498A/406/34 IPC P.S. Anand Vihar, got registered by his daughter-in-law; that there is no specific role attributed to the revisionist in the said FIR; that his son (husband of complainant in the said FIR) was already settled in USA; that daughter-in-law of revisionist came back to India with son of revisionist without informing anyone else about it;
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2024.03.26
17:00:40 +0530
Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 1/1
2
that subsequently she filed present FIR against revisionist and his family members; that revisionist has deep roots in the society and is engaged in export-import business of gold in India as well as abroad; that revisionist has to travel to different places in the world for business purpose, therefore, he has filed an application seeking NOC for renewal of his passport before the Ld. Court concerned; that in fact, the passport of revisionist was renewed for a period of 10 years, however upon fresh verification of the address of revisionist, post-renewal of passport, Investigation Officer informed the revisionist that since there is an FIR against the revisionist, therefore, NOC is required to be taken from Court; that revisionist also received a show cause notice dated 01.01.2024; that thereafter revisionist moved an application seeking NOC for renewal of passport; that IO filed reply to the said application stating that if NOC is granted to the revisionist, it will hinder the investigation; that investigation qua the revisionist is already complete and above said reply filed by IO is contrary to the Office Memorandum dated 10.10.2019 of Government of India, Ministry of External Affairs PSP Division, as per which NOC for renewal of passport cannot be denied merely because a person has been named in an FIR and merely filing of FIR and case under investigation do not come under the purview of Section 6(2)
(f) and criminal proceedings would only be considered pending against an applicant, if a case has been registered before any court of law and court has taken cognizance of VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2024.03.26 17:00:50 +0530 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 2/2 3 the same; that in the present case, no cognizance has been taken by the Court; that Ld. counsel for revisionist has placed reliance on the judgment of Hon'ble High Court of Delhi in the matter of Nishant Singhal Vs. Union of India WPC 5388/2022, wherein it has been held that passport cannot be denied merely because the FIR contains the name of a person and renewal of passport cannot be withheld in any circumstance; that Ld. trial court had observed in the impugned order that 'adverse report has been received', however, the report was that applicant was out of station; that the impugned order bars the travel of revisionist without prior permission of the court. Thus, it has been prayed that the impugned order passed by Ld. trial court may be set- aside.
3. The revisionist has filed the present revision assailing the impugned order on the following grounds, which are summarized as under:
• that Ld. trial court has exceeded her jurisdiction and has not appreciated the facts correctly;
• that Ld. trial court has gone beyond the Office Memorandum dated 19.10.2019 issued by Govt. of India; • that Ld. trial court has deemed the remark of verification report i.e. not found at address, as an adverse report, which has in a way prejudiced the case of revisionist.
4. Arguments advanced by Ld. Counsel for revisionist as well as Ld. Addl. PP for the State/respondent have been VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2024.03.26 17:00:58 +0530 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 3/3 4 heard and record along with the impugned order have been perused.
5. Ld. Counsel for revisionist advanced arguments on the same lines as grounds taken in the instant revision petition. It has been vehemently argued that impugned order is not sustainable in the eyes of law and the same is liable to be set aside. The short question involved in the present revision petition is whether the impugned order dated 22.01.2024 passed by the Ld. MM suffers from any impropriety/ illegality or not.
6. At the outset, Ld. Addl PP for the State has raised the issue of maintainability of the present revision by stating that the impugned order is not a revisable order and is purely an interlocutory/interim order.
7. On the other hand, Ld. Counsel for revisionist has strongly contended that impugned order is not an interlocutory order and the same touches upon important rights of the revisionist.
8. Before proceeding to adjudicate as to whether the impugned order is a revisable order or not, it is expedient to mention the relevant provision from which this Court derives its power of revision and the same reads as under:
Section 397 Code of Criminal Procedure, 1973 Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2024.03.26 17:01:09 +0530 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 4/4 5 Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
9. Perusal of the aforesaid provision clearly reveals that while exercising the power under Section 397 Cr. PC, this court may call for record of any subordinate criminal court to satisfy itself with respect to the correctness, legality or propriety of any finding, sentence or order. However, the said power is subject to the bar mentioned under Section 397(2) Cr.PC, whereby it is mentioned that in case of any interlocutory order, the power of revision shall not be exercised. Although, it has been contended on behalf of State that the impugned order is interim or interlocutory in nature, however, it may well be said that any order, which substantially affects the rights of the accused or decides certain rights of the parties, cannot be said to be an interlocutory order. It is worth mentioning that renewal of passport is a valuable right of a person and in case NOC for the same for a period of 10 years is declined by the court, then it is likely to substantially affect the rights of the said VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2024.03.26 17:01:16 +0530 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 5/5 6 person. Thus, in the opinion of this court, the bar of Section 397(2) Cr. PC is not attracted to the present situation and the present revision is maintainable against the impugned order.
10. Now adverting to the impugned order, vide which Ld. trial court has observed as under:
"It is pertinent to note that accused has already received a new passport bearing no. B8883476. It appears that application is being made at a belated stage after an adverse police verification report received by the accused. However, this court has no objection if the passport is renewed for a period of 2 years from the date of issuance.
The passport authority shall consider the application for renewal of passport as per rules. However, the applicant/accused is directed not to leave the country without prior permission of the court."
11. It is worthwhile to mention that as per the version put forth on behalf of revisionist, he is primarily aggrieved on three counts i.e. first of all, trial Court has deemed the remark of verification report i.e. not found at address, as an adverse report, which has in a way prejudiced the case of revisionist. Secondly, 'no objection' for renewal of passport was granted only for two years and lastly, revisionist was directed not to leave the country without permission of the court, which amounts to a 'look out circular'.
12. Before addressing the grievances of the revisionist, it is profitable to refer to Notification No. GSR 570(E) dated 25.8.1993, which was referred again in Office Memorandum dated 10.10.19 regarding issuance of passports to applicants, who have criminal proceedings pending against them and whose applications would attract the provisions of clause (f) VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2024.03.26 17:01:24 +0530 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 6/6 7 of sub-section (2) of Section 6 of the Passports Act. 1967. The said notification reads as under:
GSR 570(E) - In exercise of the powers conferred by clause (a) of Section 22 of the Passports Act, 1967 (15 of 1967) and in supersession of the notification of the Government of India in the Ministry of External Affairs No. GSR 298(E) dated the 14 April 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of Clause (f) of sub. section (2) of Section 6 of the said Act, subject to the following conditions, namely:
(a) the passport to be issued to every such citizen shall be issued
(i) for the period specified in order of the court referred to above, if the court specifies a period for which the passport has to be issued, or
(ii) if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period of one year,
(iii) if such order gives permission to travel abroad for a period less than one year. but does not specify the period validity of the passport, the passport shall be issued for one year:
(iv) if such order gives permission to travel abroad for a period exceeding one year, and does not specify the validity of the passport, then the passport shall be issued for the period of travel abroad specified in the order.
(b) any passport issued in terms of (a)(ii) and (a)(iii) above can be further renewed for one year at a time, provided the applicant has not traveled abroad for the period sanctioned by the court, and provided further that, in the meantime, the order of the court is not canceled or modified.
(c) any passport issued in terms of (a)(i) above can be further renewed only on basis of a fresh court order specifying a further period of validity of the passport or specifying a period for travel abroad,
(d) the said citizen shall give undertaking in writing to the passport issuing authority that he shall, if required VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2024.03.26 17:01:31 +0530 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 7/7 8 by the court concerned, appear before it at any time during the continuance in force of the passport so issued.
13. It is clear that GSR 570(E) was introduced to give relief to such persons against whom criminal proceedings are pending before any Court of law in India, but who may need to travel abroad for some urgent business. With an undertaking under GSR 570(E) and an order from the Court, an applicant could be issued a short validity passport of one year validity or for the period specified by the Court.
14. Further, as per point no.5 of the Office Memorandum dated 10th October 2019, the following instructions may be adopted while processing the passport applications in respect of those applicants who may have criminal proceedings pending before a criminal court in India:
(i) The provisions of GSR 570(E) may be strictly applied in all cases. GSR 570(E) is a statutory notification and hence forms part of the Rules. It is to be noted that as per Section 5(2) of the Passports Act, 1967, the passport authority shall by order in writing take a decision whether to issue or refuse a passport. after making such inquiry, if any, as it may consider necessary. Moreover, Section 7 of the Passports Act, provides that a passport or travel document. may be issued for a shorter period than the prescribed period if the passport authority, for reasons to be communicated in writing to the applicant. considers in any case that the passport or travel document should be issued for a shorter period. Rule 12 of the Passport Rules, 1980 only states that an ordinary passport shall be in force for a period of 10 years which implies that an ordinary passport cannot be issued beyond a period of 10 years.
VINEET Digitally signed by VINEET KUMAR KUMAR 17:01:38 +0530 Date: 2024.03.26 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 8/8 9
15. Pertinently, it is worth mentioning that it is not the case herein that passport is yet to be renewed and the same is to be done subject to issuance of NOC by the court concerned. In fact, in the present matter, passport has already been renewed for a period of 10 years and has been received by the revisionist, bearing no. B8883476, after the same was dispatched by the passport authority. However, in the case in hand, after renewal of passport, a fresh verification was sent to the address of the revisionist, upon which IO came for verification and informed the revisionist that since an FIR is registered against him u/s 498A/406/34 IPC in FIR No. 102/2023 P.S. Anand Vihar, therefore, NOC is required to be taken from the court concerned. Only thereafter, a request petition seeking 'no objection' in compliance of GSR 570(E) dated 25.08.1993 has been filed on behalf of revisionist before the Ld. MM.
16. Now adverting to the grievances of revisionist, first of all, the contention by revisionist that prior permission was not required before applying for renewal of passport, may have some force, as the same does not seem to be a condition precedent in the said notification, particularly in the case of revisionist, as cognizance is yet to be taken of the offence in the said case. However, it may also be stated that even the Ld. MM has merely put a query in this regard and has not emphasized much upon the same in the impugned order nor it can be said that any adverse order has been passed by the Ld. MM due to lack of prior permission from the court.
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2024.03.26
17:01:45 +0530
Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 9/9
10
Thus, even this court does not deem it fit to dwell upon this aspect any more.
17. Further, it has been contended on behalf of revisionist that Ld. MM has deemed the remark of verification report i.e. not found at address, as an adverse report, which has in a way prejudiced the case of revisionist. However, the said contention does not seem to have any force, as it is not the case that Ld. MM herself has deemed the verification report to be an adverse police verification report, but as a matter of fact, the said observation in the impugned order seems to have come on record only because one show cause notice was issued to the revisionist by the Regional Passport Office, Delhi, wherein it was categorically mentioned that police verification has been received adverse with remark 'applicant out of station' and the said show cause notice was annexed by the revisionist as Annexure 'A2' along with the application seeking NOC before the Ld. MM. Moreover, the aforesaid observation with respect to adverse police verification report does not seem to have caused any prejudice to the case of revisionist as despite the said observation, Ld. MM was still pleased to grant 'No Objection' for renewal of passport for a period of two years vide the impugned order. Also, as per point no. 5 (vii) of Office Memorandum dated 10.10.2019, an NOC issued by the Court of Law always takes precedence over any 'adverse' report submitted by the police.
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2024.03.26
17:01:52 +0530
Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 10/10
11
18. Further, the revisionist is mainly aggrieved due to the fact that 'no objection' for renewal of passport was granted only for two years and lastly, revisionist was directed not to leave the country without permission of the court, which amounts to a 'look out circular'. It is worthwhile to mention that although a no objection was granted by the Ld. MM for renewal of passport, but the same was granted only for a period of two years. Importantly, no reason whatsoever has been mentioned in the impugned order by the Ld. MM as to why said 'no objection' was only granted for a limited period of two years, while the maximum period for which the same could have been granted was 'ten years'. In the opinion of this court, once the Ld. MM was satisfied that a case has been made out for grant of NOC for the purpose of renewal, then otherwise there is nothing on record to suggest as to why NOC should not have been granted for the maximum period of ten years by the Ld.MM. Thus, the impugned order not being legally sustainable in this regard, is liable to be modified to that extent.
19. Last but not the least, it has been contended by the revisionist that he was directed by the Ld. MM vide the impugned order, not to leave the country without permission of the court and the said condition amounts to a look-out circular. However, even the said contention is without any merit, as traveling abroad is not an absolute right, more so, as an FIR was registered against the revisionist u/s 406/498A/34 IPC. Thus, for the purpose of securing the VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2024.03.26 17:02:02 +0530 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 11/11 12 presence of revisionist before the court concerned, the said court was well within its rights to impose reasonable condition against the revisionist and the same cannot be deemed as a look out circular by any stretch of imagination. Moreover, there is nothing as such, in the relevant notification in this regard, so as to bar the court concerned to impose such a condition upon a person, against whom criminal proceedings are pending before a court of law in India. Also, imposition of said condition may be justified in the facts and circumstances of the present case. Therefore, it may well be stated that the Ld. MM has not exceeded her jurisdiction by imposing the said restriction on the revisionist qua seeking prior permission of the said court before leaving the country.
20. Thus, in view of the above discussion, no interference is warranted in the impugned order except to the extent of duration for which NOC was granted by the Ld. MM for the purpose of renewal of passport. Accordingly, it is directed that this court has no objection, if the concerned authority renews the aforesaid passport of the accused for a period of ten years, if the revisionist is otherwise entitled for getting his passport renewed as per law/rules. Impugned order stands modified to that extent.
21. Suffice it to state that impugned order as to the remaining part does not suffer from any illegality or impropriety and is not perverse so as to warrant any VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2024.03.26 17:02:10 +0530 Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 12/12 13 substitution of views of this court in place of finding given by the Ld. MM.
22. Accordingly, the revision stands disposed of. Copy of this order along with proceedings of the court of Ld. MM be sent to the said court.
Revision file be consigned to record room.
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2024.03.26
17:02:22 +0530
Announced in the open (Vineet Kumar)
Court on 26.03.2024 ASJ-02/E-Court,
Shahdara/KKD/Delhi.
Cr. Rev. No. 28/2024 Manish Luthra Vs. State Page No. 13/13