Delhi High Court - Orders
Sanjeev Sehgal vs The Central Bureau Of Investigation on 22 September, 2022
Author: Anu Malhotra
Bench: Anu Malhotra
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 149/2016 & CRL.M.A. 4993/2022
SANJEEV SEHGAL ..... Appellant
Through: Mr. Harsh K Sharma, Ms. Vaibhavi
Sharma, Mr. Lakshya Parashar & Ms.
Bhumika Yadav, Advocates.
versus
THE CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Prasanta Varma, SPP for CBI
with Mr. Amrit Singh & Ms. Hiteshi
Kakkar, Advocates.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 22.09.2022 CRL.M.A. 4993/2022 This is an application filed on behalf of the appellant seeking permission for renewal of his passport for a period of ten (10) years submitting to the effect that his passport is valid till the date 28.10.2022 and that in terms of the Passport Act, 1967, the renewal thereof beyond a period of one year can only be granted subject to orders of the Court in terms of notification dated 25.08.1993, G.S.R. 570 (E)/ Ministry of External Affairs, whereby, it has been stipulated to the effect:-
"G.S.R. 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. G.S.R. 298 (E), dated the 14th April, 1976, the CRL.A. 149/2016 Page 1 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Central Govemment, 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 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 CRL.A. 149/2016 Page 2 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
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."
The applicant has submitted through the present application that he has been convicted vide judgment dated 31.01.2016 and sentenced vide the impugned order on sentence dated 22.01.2016 of the Court of the learned Special Judge (PC Act)/ CBI- 01, New Delhi District, Patiala House Court, New Delhi in RC No. DAI-2001 A0024, whereupon, the appeal filed by the appellant herein in which the present application has been filed i.e. CRL.A. 149/2016 was admitted vide order dated 16.02.2016.
The applicant has further submitted that he intends to visit his daughter in the United States for a period of 60 days and has submitted that in the absence of renewal of his passport, as prayed, he would be unable to travel abroad for a period of one year submitting to the effect that any passport issued for a period of one year has a servable life of six months because foreign travel cannot be undertaken if, the life of the passport is not more than 6 months at the date on which the travel is sought as per the visa rules.
The CBI vide its response to the application under consideration submits inter alia to the effect that the appellant was convicted in a disproportionate assets case and that he was found to be laundering his black money and though his daughter is settled abroad and that he would not return and that in terms of the conditions dated 16.02.2016, whereby, his sentence has been suspended, there are directions to the appellant to appear as and when directed and to inform of the change of his addresses.
CRL.A. 149/2016 Page 3 of 13Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Inter alia, the CBI has submitted that the fine imposed on the appellant, has not been deposited by the appellant with it having been submitted on behalf of the CBI that the present application is a design to flee from the country.
As regards the submission made by the CBI that the fine imposed vide the impugned judgment has not been deposited, it is essential to observe that vide order dated 16.02.2016 qua CRL.M. (BAIL) 280/2016 & CRL.M.A. 2379/2016 in terms of Section 357(2) of the Cr.P.C., 1973, the payment of the said fine was stayed during the pendency of the present appeal. The said submission thus, cannot be sustained that the applicant/ appellant has not deposited the fine.
Inter alia, on behalf of the applicant/ appellant reliance is sought to be placed on the verdict of the Hon'ble Supreme Court in "Vangala Kasturi Rangacharyulu Versus Central Bureau of Investigation" in Criminal Appeal No(s). 1342/2017, a verdict dated 27.09.2021, whereby, it is indicated therein that the applicant thereof had been convicted qua offences punishable under Sections 120-B, 420, 468, 471, 477A of the Indian Penal Code, 1860 read with Section 13(2) read with Section 13(1) of the Prevention of Corruption Act, 1988 with the appeal filed by the said appellant having been dismissed by the High Court, though, the sentence was reduced to a period of one year and the appeal filed by the appellant before the Apex Court i.e. Criminal Appeal No(s). 1342/2017 then being under consideration and the application that was filed by the applicant sought a direction to the respondent i.e. CBI to give no objection for renewal of his passport which had expired on 12.11.2017, which the applicant was CRL.A. 149/2016 Page 4 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
informed was not being renewed due to the pendency of the criminal appeal before the Apex Court.
Reliance was placed on behalf of the CBI on the provisions of Section 6.2 of the Passport Act, 1967 as well as Section 6.2 (e) and Section 6.2 (f) of the Passport Act, 1967. Section 6.2 of the Passport Act, 1967 has been reproduced in the proceedings dated 27.09.2021 in Criminal Appeal No(s). 1342/2017 vide order of the Hon'ble Apex Court and it has thereafter been observed to the effect:-
"The refusal of a passport can be only in case where an applicant is convicted during the period of 5 years immediately proceeding the date of application for an offence involving moral turpitude and sentence for imprisonment for not less than two years. Section 6.2 (f) relates to a situation where the applicant is facing trial in a criminal court. Admittedly, at present, the conviction of the appellant stands still the disposal of the criminal appeal. The sentence which he has to undergo is for a period of one year. The passport authority cannot refuse the renewal of the passport on the ground of pendency of the criminal appeal.
The passport authority is directed to renew the passport of the applicant without raising the objection relating to the pendency of the criminal appeal in this Court. Subject to the other conditions being fulfilled, the Interlocutory Application stands disposed of", observing thus, to the effect that the refusal of the passport can be only in case where an applicant is convicted during the period of 5 years immediately proceeding the date of application for an offence involving CRL.A. 149/2016 Page 5 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
moral turpitude and sentence for imprisonment for not less than two years.
In the instant case, it has been observed vide order dated 16.02.2016 that the appellant has been sentenced to undergo rigorous imprisonment for one year and a fine of Rs.5,00,000/- for the offence under Section 13(l)(e) read with Section 13(2) of Prevention of Corruption Act, 1988 and in default of payment of fine, to undergo simple imprisonment for a period of six months. The payment of the said fine, as observed elsewhere hereinabove, has already been directed to be suspended during the pendency of the present appeal. The imprisonment imposed vide the impugned order on sentence dated 22.01.2016 is less than a period of two years, having been imposed of rigorous imprisonment for a period of one year and thus, the observations of the Hon'ble Supreme Court dated 27.09.2021 in the case relied upon in Criminal Appeal No(s). 1342/2017, squarely apply to the instant case.
In reply to a specific Court query, it is informed on behalf of the appellant by the learned counsel for the appellant that after admission of CRL.A. 149/2016, the appellant has never travelled abroad.
This Court has had an occasion to consider a similar aspect in "Udit Rathi Vs. Central Bureau of Investigation", CRL.A.764/2016 vide order dated 26.08.2022 in CRL.M.A.13950/2022 and taken into account the provisions of Rule 12 of the Passport Rules, 1980, Section 6 of the Passport Act, 1967, the office memorandum dated 10.10.2019 issued vide notification VI/401/1/5/2019 issued by the Government of India, Ministry of External Affairs which reads to the effect:-
"OFFICE MEMORANDUM CRL.A. 149/2016 Page 6 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Subject: Issue of passports to applicants against whom criminal cases are pending before a court of law in India. Reference is invited to Notification No. GSR 570(E) dated 25.8.1993 regarding issuance of passports to applicant who have criminal proceedings pending against them and whose applications would attract the provisions of clause (f) of sub- section (2) of Section 6 of the Passports Act, 1967.
2. GSR 570(E) dated 25 .8.1993 is reproduced below for reference:
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 super session of the notification of the Government of India in the Ministry of External Affairs No. GSR 298(E) dated the 14th April 197 6, 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 (I) of subsection (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.CRL.A. 149/2016 Page 7 of 13
Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
(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 given 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.
3. It may be noted that applicants may be refused passports only on grounds mentioned under Section 6(2) of the Passports Act, 1967. Section 6(2)(f) of the Act states that the passport authority shall refuse to issue a passport or travel document to an applicant on the ground that proceeding in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India. GSR 570(E) dated 25.8.1993 was introduced to give relief -to such applicants 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.
4. It has been noticed that there are an increasing number of references being received regarding passport applications attracting Section 6(2)(f). It has also been brought to Ministry's notice that there are a number of complex issues involved while processing such applications. During the proceedings in a recent court case, the Hon'ble High Court of Delhi in W.P. (CRL) No. 2844/2018 /CRL.M.A 48674/2018 has directed that guidelines be issued by the Ministry reiterating the procedure for processing of such applications and emphasizing that such CRL.A. 149/2016 Page 8 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
applications need to be processed with due care and diligence.
5. In view of the above, 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.
(ii) Whenever an applicant is submitting a 1No Objection Certificate' (NOC) from a Court of law in India, the applicant should be advised that undertaking as per GSR 570(E) should be complete in all respects and should mention all the pending criminal cases against the applicant. The undertaking will have a note clearly stating that if any false or incomplete information is submitted by an applicant, then his passport application is liable to be rejected.
(iii) Extant instructions clearly lay down that such applications should be processed on pre-Police Verification (PV) mode.
"Pre-PV" would be mandatory in all cases of applications submitted with GSR 570(E) to ensure that the undertaking submitted by the applicant is properly matched with the criminal cases mentioned in the Police Verification Report (PVR). Hence, such applications should not be accepted under CRL.A. 149/2016 Page 9 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Tatkaal nor such applications be moved to "post-PV" mode or "No-PV" mode without proper justification and approval to be recorded in writing.
(iv) If an undertaking is incomplete or misleading and the applicant is found to have suppressed details of other criminal cases against the applicant, a Show Cause Notice should be issued to the applicant and action initiated against that applicant as per provisions of Section 12 of the Passports Act, I
967. If information that an applicant has obtained a passport by making a false submission or by suppressing material facts comes to light after the passport has been issued, the passport may be impounded or revoked as per provision of Section 10(3)
(b) of the Passports Act, 1967, after following the due procedure.
(v) In case where the first Police Verification(PV) is 'Adverse', secondary police verification may be generated. While a secondary PV is generated, it should be accompanied by a detailed letter seeking clarification regarding the pending criminal cases against the applicant and the status of these cases. Apart from generating secondary PVR, the pas port officers may, if considered necessary, call for discreet enquiry through the police authorities by' sending the court order submitted by the applicant or even seek verification from other government agencies/departments, as the case may be.
(vi) In case where the secondary Police Verification is also 'Adverse', it may be examined whether the details brought out in the 'police report match the undertaking submitted by the applicant. It may be noted that mere filing of FIRs and cases under investigation do not come under the purview of Section 6(2)(f) and that criminal proceedings would only be considered pending against an applicant if a case has been registered before any Court of law and the court has taken cognizance of the same.
(vii) If the details given in the police report and the undertaking submitted by the applicant are matching, then the 'No Objection Certificate' issued by a Court of law submitted by the applicant CRL.A. 149/2016 Page 10 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
would take precedence over any 'Adverse' report submitted by the police. In such cases, the 'Adverse' report may be overruled with the written approval of the Passport Officer.
(viii) If the details given in the PVR and the undertaking submitted by the applicant are at variance, then a notice may be issued to the applicant calling for clarification and advising the applicant to submit details of all pending criminal cases as well as to submit a revised No Objection Certificate (NOC).
(ix) If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant before several courts of law, then the applicant may be advised to get NOC from all the concerned court(s). Normally, the Court Order would make a mention of the cases pending against the applicant as well as the prayer made by the applicant. This may be examined along with the undertaking submitted, by the applicant and complaints or other court orders, if any, that may have been received against the applicant.
(x) It may noted that GSR 570(E) only exempts an applicant from the operation of Section 6(2)(f) and none of the other sub- sections of Section 6(2) of the Passports Act, 1967.
(xi) A revised Undertaking under GSR 570(E) is attached at Annexure 'A'.
(xii) Passport Officers may issue an internal SOP along the above lines so that there is no confusion in handling of applications that would attract provisions of section 6(2)(f) of the Passports Act, 1967.
6. The above instructions may be noted for strict compliance with immediate effect."
Thus, apparently, the applicant herein does not fall in the category of a person entitled to an 'ordinary passport' in terms of the Passport Rules, 1980 in Rule 12(1) thereof qua which, however, the office memorandum dated 10.10.2019 vide notification VI/401/1/5/2019 issued by the Government of India, Ministry of External Affairs makes an exception in CRL.A. 149/2016 Page 11 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
public interest exempting citizens of India against whom proceedings in respect of an offence alleged to have been committed by them qua whom proceedings are pending before a criminal Court in India and who produce the orders of the Court concerned permitting them to depart from India from the operation of Clause (f) sub section (2) of the said Section 6 of the said Act subject to the conditions as detailed in the said memorandum which indicates that through Section 6(2) sub Section (a)(i), the passport can be issued to every such citizen of the country against whom there are criminal proceedings pending in criminal Court in India for the periods specified in the order of the Court or if the Court specifies a period for which the passport has to be issued and in terms of Clause (a)(ii) to paragraph 2 thereof if no period either for the issuance of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period of one year with it further prescribed through Clause 2(a)(iii) that 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 and it being stipulated vide Clause 2(a)(iv) that 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, making it apparent thus, that there can be permission granted for issuance of passport beyond a period of a year in terms of the said notification itself.
On a consideration of the submissions that have been made on behalf of either side, there being nothing to indicate that the applicant has misused the liberty granted vide order dated 16.02.2016 in the instant appeal, this CRL.A. 149/2016 Page 12 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Court considers it appropriate to grant permission for renewal of the passport of the applicant as per Rules for a period of three (3) years from the date of expiry of his passport subject to his being eligible for the same.
The application i.e. CRL.M.A. 4993/2022 is disposed of.
ANU MALHOTRA, J SEPTEMBER 22, 2022 nc CRL.A. 149/2016 Page 13 of 13 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:27.09.2022 16:19:01 This file is digitally signed by PS to HMJ ANU MALHOTRA.