Madras High Court
P.Krishnamoorthy vs The Regional Passport Officer on 19 April, 2018
Author: M.S.Ramesh
Bench: M.S.Ramesh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2018
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
Writ Petition (MD) No.20335 of 2016
nd
W.M.P(MD)No.14535 and 14536 of 2016
P.Krishnamoorthy ... Petitioner
Vs.
1.The Regional Passport Officer,
Government of India,
Ministry of External Affairs,
Passport Office,
Bharathi Ula Veethi,
Race Course Road,
Madurai 625 002.
2.The Inspector of Police,
Melur Police Station,
Melur, Madurai District.
(R-2 impleaded vide
court order dated 13.07.2017 in
W.M.P(MD)No.15037 of 2016) ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorarified Mand[amus, to call for the records
relating to the impugned order of the respondent in his proceedings
No.1300923/CRM/MDU, dated 03.08.2016 and quash the same and consequently
direct the respondent to return the petitioner's passport bearing
registration No.L2317216 under the surrender certificate issued by the
respondent in file No.MD1071026399913 within the time frame stipulated by
this Court.
!For Petitioner : Mr.M.Lingadurai
^For 1st Respondent : Mr.V.Kathirvelu,
Assistant Solicitor General of India
assisted by Ms.Ragaventhree
For 2nd Respondent : Mr.N.Shanmugaselvam,
Additional Government Pleader.
:ORDER
The petitioner, who was the holder of passport bearing L-2317216, had renewed the same after the expiry of its validity. On 10.11.2014, the first respondent had sought for clarification with the petitioner in connection with an adverse police verification. The petitioner had clarified that there was no criminal case pending against him and that he had not suppressed any vital information in his passport renewal application dated 31.05.2013.
2.Pursuant to the surrender notice, the petitioner was constrained to surrender his passport and on 15.03.2015, an another clarification was sought for with regard to the criminal case registered against the petitioner in Crime No.618 of 2012 on the file of the Melur Police Station. The petitioner by relying upon an order dated 20.11.2015 obtained from the concerned jurisdictional Magistrate, Melur clarified to the first respondent that he was not an accused in the said criminal case in Crime No.618 of 2012. However, since the petitioner's request for return of the passport was not considered, he had earlier approached this Court seeking for a direction to the respondents to dispose of his case and by an order dated 06.08.2014, this Court had observed that if the petitioner is not an accused in any criminal case, the first respondent herein should pass an order after obtaining report from the concerned police station, within two weeks. Since the order of this Court was not complied with, a contempt petition came to be filed in Cont.P.(MD)No.1026 of 2016. It is the case of the petitioner that in order to circumvent the contempt proceedings, the impugned order dated 03.08.2016 came to be passed rejecting his application on the ground that it violates Section 10(3)(e) of the Indian Passports Act, 1967.
3.The learned counsel for the petitioner submitted that the petitioner was not an accused in Crime Nos.618 and 160 of 2012 and the same has been reiterated by the learned Judicial Magistrate, Melur, Madurai District, in his order dated 20.11.2015 and as such, there was no basis for passing the impugned order since the same does not violate Section 10(3)(e) of the Indian Passports Act, 1967.
4.The learned counsel for the petitioner further submitted that as on the date when he had surrendered the passport, he was not an accused in any criminal case and after the surrender certificate, he was arrayed as an accused in the charge sheet filed in Crime No.618 of 2012. The learned counsel further submitted that the charge sheet that came to be laid on 07.09.2016, cognizance is yet to be taken till date and as such, it cannot be deemed to be a criminal proceeding.
5.The further submission of the learned counsel is that the first respondent herein had predetermined to initiate the impugned proceedings against the petitioner since they had indicated in their letter dated 03.08.2016 that a charge sheet has already been filed against the petitioner but however, the fact remains that the charge sheet in Crime No.618 of 2012 came to be filed only on 07.09.2016 after about one month and therefore, the entire exercise is vitiated.
6.The learned Assistant Solicitor General of India, on the other hand submitted that the decision to make the petitioner's surrendering of passport was based on three police verification reports and as such, there was no illegality in passing the impugned order. He would further submit that as on date, there is a charge sheet filed and the same is pending against the petitioner in which the petitioner has been arrayed as an accused and therefore, the case squarely attracts Section 10(3)(e) of the Indian Passports Act, 1967, even otherwise, the petitioner is involved in a criminal case causing huge loss to the Government and therefore, it is for the concerned trial Court to consider the petitioner's case for granting any orders to the passport authorities permitting him to leave the country.
7.I have given careful consideration to the submissions made by the respective counsels.
8.Before dealing with the facts of the petitioner's case, it would be appropriate to have a glance at the legal position in a case of this nature. Section 10(3)(e) of the Indian Passports Act, 1967 reads as follows:
?10.Variation, impounding and revocation of passports and travel documents:-
(1).....
(2)....
(3)The passport authority may impound or cause to be impounded or revoke a passport or travel document,-
(a)....
(e)if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a Criminal Court in India.?
9.The word 'may impound' empowering a passport authority to impound or cause to impound or revoke the passport is apparently directory in nature and not mandatory.
10.The Ministry of External Affairs by a notification in GSR 570 dated 25.08.1993 had diluted the scope of Section 10(3) (e) of the Indian Passports Act, 1967 by exempting the persons against whom criminal proceedings are pending and who produce orders from the Court thereby permitting them to depart from the country with certain conditions. For the sake of clarity, the said notification is extracted hereunder:-
?Ministry of External Affairs Notification New Delhi, the 25th August, 1993 G.S.R.570 (E):-In exercise of the powers conferred by clause (1) of Section 22 of the Passports Act 1967 (15 of 1967) and in suppression of the notification of the Government of India in the Ministry of External Affairs No.G.S.R.298(E), dated 14th 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 6of 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; or
(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 travelled abroad for the period sanctioned by the Court; and provided further that, in the meantime, the order of the Court is not cancelled or modified;
(c)any passport issued in terms of (a) (I) above can be further renewed only on the 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 an undertaking in writing to the passport issuing authority that he shall, if required by the court concerned, appear before it at any time during the continuance in force of the passport so issued.?
11.The aforesaid notification came to be further clarified through a circular issued by the Ministry of External Affairs, dated 21.08.2014, insofar it relates to the issuance of passports to an applicant against whom proceedings are pending before a Criminal Court. As per the said circular, the passport authorities were directed to process the applications for issuance of passport after obtaining an undertaking together with a letter directing them to fulfil the requirements prescribed in the gazette notification dated 25.08.1993.
12.In the light of the notification dated 25.08.1993 and the subsequent circular dated 21.08.2014 read with Section 10(3) (e) of the Indian Passports Act, 1967, it can only be concluded that the scope for denying permission to issue a passport or initiate steps to impound is narrowed down to the effect that such persons may be permitted to leave the country on fulfilment of certain requirements. On a cogent reading of the gazette notification along with Section 10(3)(e) of the Indian Passports Act, 1967, it can only be held that the provisions of the Indian Passports Act will not be an absolute embargo for a person to leave the country or otherwise be disentitled for issuance of passport.
13.Yet another aspect that could be relevant in the circumstances of the present case, is the status of a person being accused or charged for criminal offences. One of the cardinal principles of criminal jurisprudence is the principle of presumption of innocence. The general principle is that a person accused of a criminal offence is presumed to be innocent until he is proved to be guilty has been reiterated in various judgments of the Apex court as well as the High Courts. The right of a person to move in and out of the country is a personal liberty protected under Article 21 of the Constitution of India. The requirement of natural justice is implicit in Article 21. While a person's personal liberty is protected under the Constitution of India, when such a person is yet to be proved guilty of a criminal offence, the passport authorities deriving their powers under Section 10(3)(e) of the Indian Passports Act, 1967, which is only directory in nature may not be justified in arbitrarily invoking the provision for impounding or attempting to impound or revoking the passport on the ground that the criminal case is pending.
14.In the light of the above observations, it can only be concluded that the respondent's action in creating an embargo to the personal liberty of the petitioner to move in and out of the country, is arbitrary.
15.In the instant case, it is seen that the petitioner was initially not arrayed as an accused in Crime No.618 of 2012. This fact was also backed by an order of the Judicial Magistrate dated 20.11.2015 passed in Crl.M.P(MD)No.5417 of 2015. The charge sheet came to be laid only on 07.09.2016 and the petitioner was then arrayed as an accused therein. In the interregnum, this Court by an order dated 06.08.2014, passed in W.P(MD).No.12894 of 2014 had also directed the passport authorities to pass a final order after calling for report from the police station.
16.When the passport authorities had issued a letter dated 03.08.2016, they have made an observation to the effect that criminal case in Crime No.618 of 2012 against the petitioner has already been charge sheeted. Curiously, the charge sheet was actually filed after about one month later on 07.09.2016. In view of this observation, I find some force in the submission of the learned counsel for the petitioner that the passport authorities had predetermined to issue the impugned order against the petitioner.
17.Yet another ground raised by the learned counsel for the petitioner is that after the charge sheet has been filed, the concerned Sessions Court is yet to take cognizance of the offence and that it is still in the P.R.C stage in P.R.C.No.32 of 2016 on the file of the learned Judicial Magistrate Court, Melur. The matter is yet to be committed to the Sessions Court and as such, the next question that arises for consideration is as to whether criminal proceedings pending against the petitioner herein, prior to taking of cognizance, could be deemed to be a criminal case warranting an adverse report.
18.This Court had an occasion to deal with the scope of the phrase ?pendency of an FIR and proceedings in pre-cognizance stage? as evidenced in Section 10(3)(e) in a judgment reported in 2014 (2) CWC 684 (W.Jaihar William and others Vs.State of Tamil Nadu) could be termed as proceedings pending before the Court. The relevant portion of the said order is as follows:-
?8.From the materials available on record, this Court finds that the Applications submitted by the petitioners for passport were not considered by the third respondent for the reason that FIRs are pending against them. The Superintendent of Police, Tirunelveli, has filed Counter Affidavits stating that First Information Reports have been filed against the Petitioners for the alleged offences, stated supra, since they are involved in the agitation against the Koodankulam Nuclear Project. So far as the Petitioner in W.P(MD)No.8349 of 2014 is concerned, the Criminal case has been registered under Sections 147, 148, 294(b), 353 and 307 IPC. Since the FIRs are pending against the Petitioners, the third respondent has not considered the Applications of the Petitioners, by placing reliance on Section 6(2)(f) of the Passports Act, 1967. Section 6(2) (f) reads as follows:-
6.Refusal of passports, travel documents, etc., (1).....
(2)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:
(a) & (b).....
(f)that proceedings in respect of an offence alleged to have been committed by the Applicant are pending before the Criminal Court in India;?
It is well settled legal principle that mere pendency of FIR cannot be construed as pendency of criminal proceedings in respect of the offences alleged to have been committed by the Applicant before the Criminal Court. Only after the Court takes cognizance of the offence alleged to have been committed by the applicant, as stipulated under Section 190 of Cr.P.C, it can be construed as ?proceedings pending before the Court?.
19.It is not in dispute that the case that is pending before the Judicial Magistrate, is yet to be taken cognizance by the Sessions Court and the case is still pending before the Judicial Magistrate in P.R.C.No.32 of 2016 and as such, it cannot be termed to be a pendency of criminal case. In view of the same, the provisions of the Indian Passports Act, 1967 may not be attracted. While that being so, it would not be appropriate to direct the petitioner to approach the ?concerned court? to obtain an order by way of a direction to enable him to get the relief before the passport authorities.
20.In the result, the impugned proceedings of the first respondent in proceedings No.1300923/CRM/MDU, dated 03.08.2016 is quashed and consequently, the first respondent herein is directed to return the passport bearing Registration No.L-2317216 seized under surrender certificate in No.MD1071026399913, within two weeks from the date of receipt of this order. While such an exercise of returning the passport is made, the first respondent is at liberty to seek for an undertaking from the petitioner in writing to the passport authority that he shall, if required by the Court concerned, appear before it at any time, during the validity of the passport issued.
21.With the above observation, the writ petition stands allowed. No costs. Consequently, W.M.P(MD)No.14535 and 14536 of 2016 are closed.
To The Inspector of Police, Melur Police Station, Melur, Madurai District.
.