Madhya Pradesh High Court
Alok Chansoria vs Union Of India on 30 November, 2016
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WP-9063-2015
WP-9063-2015
(Alok Chansoria vs Union of India)
30-11-2016.
Shri Amitabh Gupta, learned for the petitioner.
Shri D.K. Gupta, learned counsel for respondent No.1.
Shri Mohan Sausarkar, learned counsel for respondent No.2, 3 and 4.
With consent of learned counsel for the parties, the matter is finally heard.
Petitioner takes exception to an order-dated 4.2.2015; whereby, the Appellate Authority has dismissed the petitioner's appeal under Section 11 of the Passports Act, 1967 (hereinafter referred to as '1967 Act').
The appeal was directed against an order-dated 6.3.2012 passed by Passport Officer in purported exercise of the powers under Section 10(3)(b) of 1967 Act, revoking the passport issued to the petitioner.
The passport in question i.e. Passport No.J3035868 was issued in favour of the petitioner on his application dated 7.2.2011. The passport issued on 17.3.2011 was valid upto 16.3.2021. However, later, on receiving an adverse police verification report from the office of the Superintendent of Police, Jabalpur stating that a criminal case vide Crime No.413/2008 for an offence under Sections 147, 148, 294, 506 :: 2 ::
WP-9063-2015 and 323 of the Indian Penal Code was registered against the petitioner.
The petitioner was subjected to show-cause notice on 26.9.2011 whereby, he was called upon as to why his passport be not impounded because of furnishing of false information /suppression of material information. The alleged false information/suppression was as to residence, date/place of birth and the pendency of criminal case vide Crime No.413/2008 under Sections 147, 148, 294, 506 and 323 IPC.
The petitioner vide reply filed on 8.10.2011 refuted the allegation of false information/suppression of material information. The petitioner stated that as on 17.1.2011 when he filed an application along with affidavit, no criminal case was pending in any Court. It was stated that the criminal case said to have been registered was not within the personal knowledge of the petitioner as he was never called upon to furnish even a bail bond. It was stated that being an active member of a National Party, the petitioner was assaulted on 27.11.2008, the date of polling of Vidhan Sabha Election 2008; as a result whereof, he was admitted in the Hospital and a case was registered against the ruling party candidate and his followers vide Crime No.412/2008. In respect of offence allegedly registered against the petitioner, it was stated that no challan has been filed till the date of giving reply to the show-cause notice. It was pleaded that the proceedings be dropped.
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WP-9063-2015 The reply to show-cause notice did not find favour with the Passport Officer. Consequently, vide order-dated 6.3.2012, the passport issued to the petitioner was revoked on the ground of suppression of pendency of a criminal case in a Court of law.
The Appeal preferred thereagainst has been dismissed by impugned order-dated 4.2.2015.
The order is challenged on the ground that the revocation of passport is on non-existing fact. It is urged that on the date when the petitioner applied for the passport i.e. on 26.1.2011, no criminal case was pending in the Court of law. It is contended that the entries relating to the criminal case appeared at Serial No.17(a) and 17(b) of the Passport Application Form (No.1). And, since the petitioner was not convicted during the period of five years for any criminal offence and sentenced to imprisonment for two years or more and that no criminal proceedings were pending before a Court in India, he answered accordingly stating therein as NA (Not Applicable). It is contended the requirement for divulging on the information about the criminal case flows from the statutory provisions contained under Section 6(2)(e) and (f) of the Passport Act, 1967. It is further contended that since no criminal case was pending on 26.1.2011 before the Court, the provisions of Section 10(3)(b) of 1967 Act was not available against the :: 4 ::
WP-9063-2015 petitioner. It is contended that the impugned order deserves to be set aside and the passport be restored.
The respondents, on their turn, have refuted the contentions raised on behalf of the petitioner. It is reiterated that because of non-disclosure of the fact about registration of offence vide Crime No.413/2008 under Sections 147, 148, 294, 506 and 323 IPC that the passport which was issued in favour of the petitioner was revoked. This action, it is contended, being in consonance with the stipulations under Section 10(3)(b) of 1967 Act and has been after affording opportunity of hearing. It is urged that the revocation of passport being in accordance with the law, the petitioner is not entitled to any relief.
Considered the rival contentions.
The question which arises for consideration is whether the registration of offence on an FIR could be said to be a criminal case pending in the Court. As it is not in dispute that on 7.2.2011 except FIR as to Crime No.413/2008, no further proceedings are commended at as would establish that criminal Court had taken the cognizance of offence registered vide Crime No.413/2008.
Chapter XII of the Code of Criminal Procedure, 1973 deals with information to the police and their powers to investigate. Chapter XIV deals with the conditions requisite for initiation of proceedings. Section 190 thereunder empowers a :: 5 ::
WP-9063-2015 Magistrate specified therein to take cognizance of an offence, upon receiving a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his own knowledge.
Chapter XVI deals with commencement of proceedings before Magistrates. Section 204 whereunder envisages that "if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceedings, and the case appears to be a summons-case, he shall issue his summons for the attendance of the accused, or a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or if he has no jurisdiction himself, some other Magistrate having jurisdiction", which necessarily is not the stage when an FIR is lodged and the investigation is still continuing.
Section 6(2)(f) of 1967 Act stipulates that "subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of Section 5 on any one or more of the following grounds, and on no other ground, namely, that the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India.
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WP-9063-2015 Since it is observed from the scheme of Criminal Procedure Code that it is only when cognizance is taken by the competent Court of jurisdiction either under Chapter XIV or Chapter XVI, as the case may be, it cannot be said that with the lodging of FIR, a criminal case is pending in the Court. The Passport Authority, thus, committed patent error in construing lodging of FIR vide Crime No.413/2008 to be criminal proceeding pending in the Court.
Learned counsel appearing on behalf of the respondents Nos.2 to 4 is at loss to commend to any other provisions which empowers the passport officer to review/impound/revoke the passport even in a case where an FIR is lodged and the matter is under investigation.
The impugned order when is tested on the anvil of the above analysis, cannot be given the stamp of approval. Consequently, while setting aside order-dated 6.3.2012 passed by Passport Officer, revoking the petitioner's passport bearing No.J3035868 and order-dated 4.2.2015, dismissing the petitioner's appeal; the passport issued to the petitioner on
17.3.2011 is hereby restored.
Petition is allowed to the extent above. No costs.
(SANJAY YADAV)
vinod JUDGE