Madras High Court
Kaviyarasu vs The Regional Passport Officer on 15 September, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P(MD)No.22573 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.22573 of 2023
Kaviyarasu ... Petitioner
Vs
1.The Regional Passport officer,
Regional Passport office,
Bharathiula Veethi,
Race Course Road,
Madurai.
2.The Inspector of Police,
Aravayal Police Station,
Sivagangai District. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India, praying this Court to issue a Writ of Mandamus, directing
the first respondent to issue passport to the petitioner, based on his
Passport Application MD01C5055655923, dated 21.06.2023, within
a stipulated time that may be fixed by this Court.
For Petitioner : Mr.G.Hariharan
For R1 : Mr.P.Paul Pandian
Standing Counsel
For R2 : Mr.P.Kottaichamy
Government Advocate
1/8
https://www.mhc.tn.gov.in/judis
W.P(MD)No.22573 of 2023
ORDER
The petitioner's application for grant of passport was not considered by the Passport Authority, on the ground that a criminal proceeding is pending as against this petitioner before the Criminal Court.
2.Mr.P.Paul Pandian, learned Central Government Standing Counsel, who takes notice for the first respondent submits that based on the police verification report, they have called for an explanation from this petitioner and issued a show cause notice on 06.07.2023. However, the petitioner, without responding to the show cause notice has filed this writ petition.
3.Mr.P.Kottaichamy, learned Government Advocate, who takes notice for the second respondent submits that a case in Crime No.147 of 2021 on the file of the Aravayal Police station for the offences punishable under Sections 379 IPC and 21(40 of Mines 2/8 https://www.mhc.tn.gov.in/judis W.P(MD)No.22573 of 2023 and Minerals (Development and Regulation) Act,1957 is pending as against the petitioner and the same is under investigation.
4.Pendency of an FIR, by itself, cannot be a ground to refuse the passport. The Passport Authority can refuse the passport and any travel documents under Section 6 of the Passport Act, 1967. Section 6(2)(F) of the Act would be relevant and the same is extracted as under:-
“6.Refusal of passports, travel documents, etc- ...
(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 -
...
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India.” 3/8 https://www.mhc.tn.gov.in/judis W.P(MD)No.22573 of 2023
5.The above provision enables the Passport Authority to refuse the passport or travel document to an applicant on the ground that proceedings in respect of an offence alleged to have been committed by the applicant is pending before a Criminal Court. Registration of an FIR on the police files, based on a complaint, cannot be construed as a proceedings pending before the Criminal Court.
6.The role of the Court pending the investigation has been discussed by various Courts. In W.Jaihar William v. State of Tamil Nadu [2014 (2) CWC 684], this Court has held as follows:-
“8. ... 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.PC., it can be construed as 'proceedings pending before the Court'” 4/8 https://www.mhc.tn.gov.in/judis W.P(MD)No.22573 of 2023
7.A Division Bench of this Court in Arumugam v. Regional Passport Officer, Madurai [W.A(MD)No.301 of 2018, dated 27.03.2018], has held as follows:-
“8. ... mere pendency of the criminal proceedings cannot be construed as pendency of the criminal proceedings. The decisions relied on for reaching the said conclusion in the above cited decision, would also disclose that unless cognizance is taken by the concerned Magistrate, it does not amount to pendency of the criminal proceedings. Admittedly, in the case on hand, the case is in FIR stage and even for the sake of arguments, subsequently, the charge sheet has been filed, as on the date of submission of the application for passport, only FIR is pending and it cannot be construed as pendency of a criminal case and it cannot be said that the petitioner has suppressed the material fact of pendency of the criminal case.”
8.In fact, the Ministry of External Affairs, Government of India, has issued a Circular dated 10.10.2019, wherein, the following instruction was issued:- 5/8
https://www.mhc.tn.gov.in/judis W.P(MD)No.22573 of 2023 “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:
...
(vi) ... 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.” Therefore, the Passport Authority is not justified in not deciding the application filed by the petitioner for passport by referring the criminal case.
9.Ordinarily, the duration of a passport as per Rule 12 of the Passport Rules is for a period of 10 years. In the event if the applicant is facing any criminal proceedings, the passport may be issued by restricting the period.
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10.Accordingly, this writ petition is allowed with a direction to the Passport Authority to issue passport to this petitioner, by considering his application, within a period of twelve weeks from the date of receipt of a copy of this order. No costs.
15.09.2023 NCC: Yes/No Index:Yes/No Internet:Yes vrn To
1.The Regional Passport officer, Regional Passport office, Bharathiula Veethi, Race Course Road, Madurai.
2.The Inspector of Police, Aravayal Police Station, Sivagangai District.
7/8 https://www.mhc.tn.gov.in/judis W.P(MD)No.22573 of 2023 B.PUGALENDHI, J.
vrn Order made in W.P(MD)No.22573 of 2023 15.09.2023 8/8 https://www.mhc.tn.gov.in/judis